



iM llliHH! Ml 



hiii 



ill 



1 



■h 









i'ii!' 




am HUsona 

Book »Q *t 

GqpiglitN 



COPYRIGHT DEPOSIT. 



\ 



AN AMERICAN LABOR POLICY 



THE MACMILLAN COMPANY 

NEW YORK • BOSTON • CHICAGO • DALLAS 
ATLANTA • SAN FRANCISCO 

MACMILLAN & CO., Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



AN AMERICAN LABOR 
POLICY 



BY 

JULIUS HENRY COHEN 

Author of "Law and Order in Industry," "The Law: 

Business or Profession?" "Commercial 

Arbitration and the Law" 



H3eto gorfe 

THE MACMILLAN COMPANY 

1919 

111 rights reserved 



■fa** 



Copyright, 1919 
By THE MACMILLAN COMPANY 



Set up and electrotyped. Published, May, 1919 



JUN -5 1919 



)CI.A5 15781 






Go 
MY MOTHER 
AND FATHER 



f 



INTRODUCTION 

It seems to me that what is needed at the 
present time for the stabilizing of our indus- 
trial situation is not a British Plan, or a French 
Plan, or a Russian Plan, but an American Plan, 
in harmony with our institutions, our laws, our 
customs and our outlook generally. I am not 
a Socialist. I am not a Syndicalist. On the 
other hand, I am convinced that the present 
state of industrial organization cannot last, 
that it ought not to last; moreover, that it will 
not be permitted to last. Some change must 
come about. How shall it come about? 
What is the next step? How extensive is the 
change to be ? 

I cannot escape the leanings of my training 
as a lawyer. I believe with Signor Orlando, 
the Italian Premier, in what he said in sup- 
porting the resolution for a League of Nations 
at the Quai d'Orsay on January 25th, 1919: * 

1 See New York World, February 2, 1919. Editorial Sec- 
tion, p. 3. 



Introduction 

"The principle of law is not only the principle of 
protection and of justice against violence — it is the 
form guaranteed by the state of what is a vital prin- 
ciple to humanity — social cooperation and solidarity 
among men." 

If this "principle of social cooperation" is to 
be put into a League of Nations in order to 
insure "solidarity among men," as :well as 
"protection and of justice against violence/' 
the same principle must be put into industry. 
Employers and workers alike must come to it. 
Shall they come to it by a process as expen- 
sive as it cost the world to arrive at a state of 
international reason and law, or shall they 
profit by experience ? 

It is my earnest hope that the analogies and 
the definite experiences herein put forth will 
help to save our country from a crisis which I 
believe to be as imminent as was the European 
War five years ago, and that the enlightened 
leaders of labor and of management, as well 
as capital, will find therein some suggestion for 
a basis of cooperation. 

February I, 1919. 



AN 
AMERICAN LABOR POLICY 

The radical does not like the words "law and 
order." It is too suggestive of the police or 
the military in a time of strike or revolution. 
The Syndicalist of the Sorel type regards it as 
the final word in the scheme of the capitalist 
class to enslave the proletariat. On the other 
hand, it has been only too frequently used by 
reactionary employers to couch in respectable 
language that "quick kind of justice" which 
applies lynch law to "unwelcome foreigners." 
Of course, in its right sense the term covers 
something of the very essence of democracy. 
"What we seek," said President Wilson in his 
Mount Vernon address, "is the reign of law, 1 
based upon the consent of the governed and 
sustained by the organized opinion of man- 

1 Italics ours. 

X 



2 American Labor Policy 

kind." It is the antithesis of anarchy. With- 
out it no democracy can exist, national or in- 
ternational. "If there was ever a time," 
writes Margaret Sherwood, 1 when the world 
had need of a realization that government 
rests upon enduring allegiance to law, that 
a lasting faith should guide conduct from 
day to day, from year to year, that deci- 
sions of right and wrong should cover more 
than the single instance, it is now, in face 
of the unthinking opportunism that has gov- 
erned American life in recent years." The 
past four years have been devoted to produc- 
ing international order, to converting interna- 
tional anarchy into international law, to making 
international law a matter not of mere aca- 
demic theory but of world practice. In No- 
vember of 191 6 the writer indulged himself 
to the extent of intimating that it would seem 
like "no vain prophecy to forecast that if the 
sentiment now behind the League to Enforce 

i'Tor Democracy," the Atlantic Monthly, October, 1918, 
p. 517. 



Industrial Law 3 

Peace should prevail and the outcome of the 
great international war should be the inven- 
tion of new mechanism for making reason tri- 
umphant in international relations, we shall 
witness a rapid creation of institutions for 
subordinating industrial conflict to a reign of 
law." x This was said upon the basis of some 
ten years' contact with the industrial problem. 
It is perhaps not too hopeful now to say that by 
the time this present material will appear in 
print, some new mechanism for making rea- 
son triumphant in international relations will 
be in operation. Already the signs of the 
times indicate that, in the determination and 
fixing of industrial relations, the sound com- 
mon sense of the American people is set- 
ting its face like flint against every effort 
to substitute violence for reason. To convert 
industrial anarchy into industrial law is the 
next great task of civilization. And to the 

1 Address before the Academy of Political Science in the 
city of New York. Proceedings of the Academy of Political 
Science in the city of New York for January, 1917, Vol. VII, 
No. 1. 



4 American Labor Policy 

extent only that lawyers understand the prob- 
lem, take account of all the factors involved, 
and present a real and constructive program 
will their profession be permitted to share in 
the task. Very little has been done by our 
profession in this field. "Most of the common 
law" in this field, writes Freund, 1 "has devel- 
oped in that atmosphere of indifferent neutral- 
ity which has enabled courts to be impartial 
but also keeps them out of touch with vital 
needs." The problem has been too often con- 
sidered "as if it concerned abstract relations 
between convertible human personalities, while 
it was a problem concerning industry and a 
class." The time has come for our profession 
to awaken from its slumbers. 



THE PHILOSOPHY OF VIOLENCE 

"If a Democracy," says Maine, "were to al- 
low a portion of the multitude of which it con- 

1 Ernst Freund: "Standards of American Legislation," p. 
48. 



Philosophy of Violence 5 

sists to set some law at defiance which it hap- 
pens to dislike — it would be guilty of a crime 
which hardly any other virtue could redeem, 
and which century upon century might fail to 
repair. ,, * Graham Wallas, in "The Great So- 
ciety," calls this the philosophy of the "habit 
philosophers," and regards it as unsafe for us 
"to treat Habit as second nature or as a self- 
sufficient basis for social life." 2 Accordingly, 
the enlargement of scale "which makes Habit 
increasingly necessary in the Great Society, 
increases also the necessity of criticising and, 
from time to time, abandoning existing 
habits." 3 And Wallas uses as an illustration 
the practice of modern horticulturists, "who 
propagate millions of fruit trees or potatoes 
from cuttings, require the periodical produc- 
tion of new varieties from actual seeding" so 
that "in the modern world of habit and repeti- 
tion we have learnt to attach a new value to the 
man who goes back to his first-hand im- 

1 Sir Henry Maine : "Popular Government/' p. 64. 

2 P. 78. 

* P. 81. Italics ours. 



6 American Labor Policy 

pulses/' * With this necessity for preventing 
our becoming the slaves of our habits and for 
an enlarged freedom to change them, is Society 
to adopt the method of nervous shock or culti- 
vation of new habits by gradual change ? The 
advocates of violence take one ground; we take 
another. Like good lawyers, let us consider 
the strength of our antagonist's argument, in 
order that we may the better present our own. 
Sorel says : "We cannot censure too severely 
those who teach the people that they ought to 
carry out the highly idealistic decrees of a 
progressive justice." 2 Again: "Workmen 
quickly perceive that the labour of conciliation 
or of arbitration rests on no economico- judicial 
basis, and their tactics have been conducted — 
instinctively perhaps— in accordance with this 
datum." 3 Again: "If revolutionary syndi- 
calism triumphs, there will be no more brilliant 
speeches on immanent Justice, and the parlia- 
mentary regime, so dear to the intellectuals, 

1 Pp. 81, 82. 

2 Georges Sorel : "Reflections on Violence," p. 122. 

3 Idem., p. 64. 



Philosophy of Violence J 

will be finished with — it is the abomination of 
desolation ! We must not be astonished, then, 
that they speak about violence with so much 
anger." 1 Sorel is to the philosophy of indus- 
trial violence what Treitschke and Bernhardi 
were to the philosophy of international vio- 
lence. There is but one justice, and that is the 
justice of power. Accordingly, the working- 
men should seek to gain power in order that 
they may be the sole administrators of justice. 
These views have recently been expressed by 
Lenine in his revolutionary program for Swit- 
zerland. 2 Lenine's instructions to his follow- 
ers in conducting a strike movement contain 
this: "The best means of dragging conces- 
sions from the bourgeoisie is not that of trans- 
actions or arrangements touching their inter- 
ests or their prejudices, but the organisation 
and the preparation of the revolutionary strug- 
gle of the masses against the bourgeoisie. 
Thus we may be certain that the more wide- 

1 Idem., p. 19. 

2 See the New Europe, 24 October, 1918, Vol. IX, No. 106, 
p. 42. 



8 American Labor Policy 

spread our propaganda the wider will be the ex- 
tent of the public, which we may be able to 
persuade of the necessity for this progressive 
tax, and the greater will be the anxiety of the 
bourgeoisie to make concessions, and we shall 
profit by each one of these concessions, be it 
never so small, to extend and strengthen our 
struggle for the integral expropriation of the 
bourgeoisie" l The infamies to which this 
philosophy has gone are described in an article 
entitled "The Russian Terror/' published in 
the Frankfurter Zeitung of September 27th, 
and dispatched from Moscow September 10th 
by its correspondent, Herr Alfons Paquet. 2 
The French Revolution in the worst days of its 
reign of terror was a mild family quarrel com- 
pared with the infamies to which Lenine, Trot- 
zky and their confederates have lowered them- 
selves in the conduct of their depredations. 
Neither the small families living in lodgings 
nor the rich in the great boulevards are spared. 

1 See the New Europe, 24 October, 1918, Vol. IX, No. 106, 

p. 43. 

2 Idem., p. 44. 



Philosophy of Violence 9 

Families with small children have to pass the 
night in the street. In certain houses only pi- 
anos, pictures and clocks are requisitioned by 
the Evacuation Committees for their clubs. 
Says one of the leaders: "We must get into 
our hands not only all means of production, but 
also all the personal property of the bourgeoisie 
— for all this only serves as a weapon against 
the Proletariat." And Moscow has been made 
well aware that the words are not mere threats. 
The chief office of the Special Commission is 
installed in a house belonging to the "Russian 
Insurance Company" in the Lubianka, and 
passes sentences of life and death on those who 
are arrested. Factory managers, house own- 
ers, business men, many of them over seventy, 
are arrested and held as hostages to be shot 
immediately should any further attempts be 
made on the lives of members of the Soviet 
Government. There is scarcely a family left 
in the whole of Moscow which has not suf- 
fered from this terrible Red Terror. In broad 
daylight money and goods are stolen in the 



io American Labor Policy 

open streets by armed hordes. One section 
of a decree of the Moscow Soviet contains the 
following: "Until the instruction as to the 
confiscation of household furniture, with a 
view to its proper division among the work- 
men, is confirmed, the furniture of requisi- 
tioned houses is merely subject to inventory 
and registration/' 1 Like the French Revolu- 
tion, the Russian Revolution was a just and 
holy revolt of the people against the monarchy 
and the autocracy. In its beginning it was a 
moral reaction against wrong. All over Eu- 
rope the French Revolution was hailed as the 
dawn of a new era of righteousness, but when 
the subterranean forces, the elementary pas- 
sions of men, were let loose, there followed 
the terrible carnival of blood of the Reign of 
Terror. Similarly, at the time of the peasant 
uprising in the sixteenth century, the original 
demands of the people were couched in im- 
pressive, simple and modest terms, and yet 
there never was "a more shocking travesty of 

1 The New Europe, 24 October, 19 18, p. 47. 



Philosophy of Violence II 

humanity than the scenes enacted after the 
Peasant Revolution had started." * 

However just the cause, however righteous 
the indignation, it is the lesson of all history 
that possession of unrestrained power leads 
ultimately to the destruction of personal liberty 
and the defeat of the very cause which altru- 
istic agencies of power sought to promote. 

The philosophy of imperialism which led to 
Germany's downfall is for the time being trans- 
ferred to the Sorels, the Lenines and the 
Trotzkys. Trotzky ("The Bolsheviki and 
World Peace") condemns the bourgeois spirit 
of "law and order" as reactionary. "If the 
Social Democracy sets national duties above 
its class duties/' says he, "it commits the great- 
est crime not only against Socialism, but also 
against the interest of the nation as rightly and 
broadly understood." 2 This philosophy, then, 
represents not the earnest effort of men to se- 
cure a broader freedom for all the people, but a 

1 Felix Adler : "The Punishment of Individuals and of Peo- 
ples," the Standard, December, 1918, p. 80. 

2 P. 171. Italics ours. 



12 American Labor Policy 

sheer attempt to gather power in their hands 
to be used without restraint. It is the antith- 
esis of stable organization and of all law, 
democratic or otherwise. 

The red flag of the Russian Bolshevik and 
of the French Syndicalist, therefore, means 
something more than the destruction of capital 
or the transference of property from one group 
of society to another. It means destruction 
of law and the autocratic wielding of power 
by mob leaders. There is little danger that 
this philosophy will go far in our own country. 
Some of the boys in uniform have already in- 
dicated how they will react to it. But should 
the disease germ spread, like the influenza the 
ravages of the epidemic will be terrible before 
it is checked. It is a sensible warning which 
John D. Rockefeller, Jr., sounded at Atlantic 
City, that upon the heads of those leaders 
"who refuse to reorganize their industrial 
households in the light of the modern spirit, 
will rest the responsibility for such radical and 
drastic measures as may later be forced upon 



The Modern Spirit 13 

industry if the highest interests of all are not 
shortly considered and dealt with in a spirit 
of fairness." 



THE MODERN SPIRIT 

What is this modern spirit to which Mr. 
Rockefeller refers? In the great Mogul 
Steamship Case, Lord Chief Justice Coleridge 
permitted himself to say : "It must be remem- 
bered that all trade is and must be in a sense 
selfish; trade not being infinite, nay, the trade 
of a particular place or district being possibly 
very limited, what one man gains another loses. 
In the hand to hand war of commerce . . . 
men fight on without much thought of others, 
except a desire to excel or to defeat them. 
Very lofty minds, like Sir Philip Sidney with 
his cup of water, will not stoop to take an 
advantage, if they think another wants it more. 
Our age, in spite of high authority to the con- 
trary, is not without its Sir Philip Sidneys ; but 
these are counsels of perfection which it would 



14 American Labor Policy 

be silly indeed to make the measure of the 
rough business of the world as pursued by 
ordinary men of business/' * In the same case 
Lord Justice Fry said: "I know no limits 
to the right of competition in the defendants 
— I mean, no limits in law. I am not speak- 
ing of morals or good manners. To draw a 
line between fair and unfair competition, be- 
tween what is reasonable and unreasonable, 
passes the power of the Courts. Competition 
exists when two or more persons seek to 
possess or enjoy the same thing: it follows 
that the success of one must be the failure of 
another — and no principle of law enables us to 
interfere with or to moderate that success or 
that failure so long as it is due to mere com- 
petition/ 1 2 And Lord Justice Bowen said: 
'To say that a man is to trade freely, but that 
he is to stop short at any act which is cal- 
culated to harm other tradesmen, and which is 
designed to attract business to his own shop, 

121 L. R. Q. B. D. 544, at 553-4- 

223 L. R. Q. B. D. 598, at 625-6 (1889). 



The Modern Spirit 15 

would be a strange and impossible counsel of 
perfection" and that "To attempt to limit Eng- 
lish competition in this way would probably 
be as hopeless an endeavour as the experiment 
of King Canute." 1 This may be fairly de- 
scribed in the language of The Journal of 
Commerce of New York as "the old standards 
of the industrial Bourbons of past years" 
which are "out of date and cannot be again 
maintained or enforced." 2 We lawyers have 
been very fond of saying that ours is a pro- 
fession, not a business ; that our vocation is not 
to make money, but to serve, our reward 
remaining secondary always to the perform- 
ance of the social service to which we are 
dedicated. Mr. Rockefeller is almost pro- 
fessionalizing industry when he says : "... 
shall we adopt the modern viewpoint, which 
regards industry as in the nature of social 
service, as well as a revenue-producing proc- 
ess for capital and labor?" And we must 

123 L. R. Q. B. D. 598, at 615-16 (1889). 
2 December 10, 1918. 



1 6 American Labor Policy 

agree that he is thoroughly sound when he says 
that "the day has passed when the conception 
of industry as primarily a matter of private 
interest can be maintained. To cling to it is 
only to lay up trouble for the future and to 
arouse antagonism. In the light of the pres- 
ent, every thinking man must adopt the view 
that the purpose of industry is to advance so- 
cial well-being rather than primarily to afford 
a means for the accumulation of individual 
wealth." It is significant that on the very day 
that Mr. Rockefeller's address was delivered 
at Atlantic City, the Committee on Industrial 
Problems and Relations of the Chamber of 
Commerce in New York struck almost iden- 
tically the same note as did Mr. Rockefeller, 
urging that "wage-earners as a class must be 
given an opportunity to count as men and 
women in the vital management of their in- 
dustries in whatever position they may be 
qualified to count," and the men who are re- 
turning from active campaigns against the 
enemy "will not be content to relapse to a posi- 



The Modern Spirit 17 

tion where they are only a number on a time 
sheet or a pay-roll. Nor is it right or just that 
they should be asked to do so/' When the 
War Emergency and Reconstruction Confer- 
ence at Atlantic City rose to its feet and unani- 
mously adopted (substantially) the ten articles 
of Mr. Rockefeller's creed/ the chairman of 

1 1. I believe that labor and capital are partners, not ene- 
mies; that their interests are common interests, not opposed, 
and that neither can attain the fullest measure of prosperity 
at the expense of the other, but only in association with the 
other. 

2. I believe that the community is an essential party to in- 
dustry, and that it should have adequate representation with 
the other parties. 

3. I believe that the purpose of industry is quite as much to 
advance social well-being as material well-being and that in the 
pursuit of that purpose the interests of the community should 
be carefully considered, the well-being of the employes as 
respects living and working conditions should be fully guarded, 
management should be adequately recognized and capital 
should be justly compensated, and that failure in any of these 
particulars means loss to all four. 

4. I believe that every man is entitled to an opportunity to 
earn a living, to fair wages, to reasonable hours of work and 
proper working conditions, to a decent home, to the oppor- 
tunity to play, to learn, to worship and to love, as well as to 
toil, and that the responsibility rests as heavily upon industry 
as upon government or society, to see that these conditions 
and opportunities prevail. 

5. I believe that industry, efficiency and initiative, wherever 
found, should be encouraged and adequately rewarded and 



1 8 American Labor Policy 

the meeting was so pleased with the spirit thus 
shown that he said: "That's fine business." 
Realizing the importance of the action about 

that indolence, indifference and restriction of production 
should be discountenanced. 

6. I believe that the provision of adequate means for- uncov- 
ering grievances and promptly adjusting them, is of funda- 
mental importance to the successful conduct of industry. 

7. I believe that the most potent measure in bringing about 
industrial harmony and prosperity is adequate representation 
of the parties in interest; that existing forms of representa- 
tion should be carefully studied and availed of in so far as 
they may be found to have merit and are adaptable to the 
peculiar conditions in the various industries. 

8. I believe that the most effective structure of representa- 
tion is that which is built from the bottom up, which includes 
all employes, and, starting with the election of representa- 
tives in each industrial plant, the formation of joint works 
committees, of joint district councils and annual joint confer- 
ences of all the parties in interest in a single industrial cor- 
poration, can be extended to include all plants in the same 
industry, all industries in a community, in a nation and in the 
various nations. 

9. I believe that the application of right principles never 
fails to effect right relations; that the letter killeth and the 
spirit maketh alive; that forms are wholly secondary while 
attitude and spirit are all important, and that only as the par- 
ties in industry are animated by the spirit of fair play, justice 
to all and brotherhood, will any plans which they may mutu- 
ally work out succeed. 

10. I believe that that man renders the greatest social serv- 
ice who so cooperates in the organization of industry as to 
afford to the largest number of men the greatest opportunity 
for self-development and the enjoyment by every man of those 
benefits which his own work adds to the wealth of civilization. 



The Modern Spirit 19 

to be taken, before he called for the vote he 
said: "The action you men are taking here is 
more significant than many of you realize. 
Your action here will go farther than you 
think, and the benefit of it will be greater than 
you believe." No one will be so bold as to 
believe that acceptance of general principles or 
even the adoption of an industrial creed means 
that the industrial millennium is in sight. But 
it betokens a change in philosophy, a change in 
attitude. It means that so far as the leaders 
of industry are concerned, the old Bourbonism 
is dead, or soon will be. Under the title 
"Changing Economic Viewpoints/' a promi- 
nent Trust Company in New York early in 
November presented in its bulletin "certain 
tendencies of the time, both here and abroad." 
In this very interesting document, it says that 
the theory of economic independence "was 
based upon a tacit acceptance of the German 
doctrine that a state of commerce is a state of 
war, a doctrine which is in turn based upon the 
false and outworn theory that every exchange 



20 American Labor Policy 

of goods or services must be to the disadvan- 
tage of one of the parties concerned." "The 
new conception of what men owe to themselves 
and to each other/' it says, "which has been 
fostered by the common sufferings and un- 
dertakings of the war, is permeated by the idea 
of service. That idea is expressed in a host of 
men drawn from every corner of the world to 
put down once and for all the injustices of a mili- 
tary autocracy. It runs through the thought 
of all those who stand behind these arm- 
ies. It is the very heart of the ideal for which 
we fight. Whatever terms of peace are drawn 
the animating purpose of them will be service. 
And it is upon a basis of service that the en- 
during plans of any nation for reconstruction 
will be grounded/' This in a Trust Company 
bulletin ! 



Organization in Industry 21 



THE NECESSITY FOR LEADERSHIP AND OR- 
GANIZATION IN INDUSTRY 

Even Lenine recognizes that the proletariat 
imperialism cannot be secured without the aid 
of "the biggest of the bourgeois specialists" 
and that "without the direction of specialists of 
different branches of knowledge, technique and 
experience, the transformation toward Social- 
ism is impossible, for Socialism demands a 
conscious mass movement toward a higher 
productivity of labor in comparison with capi- 
talism and on the basis which has been at- 
tained by capitalism." * It will, under his 
regime, be necessary to "keep accurate and 
conscientious accounts; conduct business eco- 
nomically; do not loaf; do not steal; maintain 
strict discipline at work." * And Dr. Anna In- 
german, a Socialist who had been seven months 
in Russia, is reported to have said: "I feel 
that only the genius of capitalism can build up 

1 Nikolai Lenine : "The Soviets at Work." 



22 American Labor Policy 

Russia economically and make it strong and 
virile and healthy. After capitalism has done 
its work, Russia will be prepared for Social- 
ism." When our country found itself con- 
fronted with the task of quickly mobilizing 
its productive powers, it called upon these 
"bourgeois" specialists, the Schwabs, the 
Baruchs, the Ryans, the Stettiniuses, the 
Goethals — all the men of trained specializa- 
tion, who knew what order, discipline and or- 
ganization were like, and in addition possessed 
the qualities of driving leadership. 

Back of the motors humming, 

Back of the belts that sing, 
Back of the hammers drumming, 

Back of the cranes that swing, 
There is the eye which scans them 

Watching through stress and strain, 
There is the Mind which plans them — ■ 

Back of the brawn, the Brain! 

Might of the roaring boiler, 

Force of the engine's thrust, 
Strength of the sweating toiler, 

Greatly in these we trust. 
But back of them stands the Schemer, 



Organization in Industry 23 

The Thinker who drives things through ; 
Back of the Job — the Dreamer 

Who's making the dream come true ! 1 

It is not the birth of a man which makes his 
worth. It is what he is and what he can make 
of himself. The genius of Foch is the combi- 
nation of those rare natural qualities of leader- 
ship coupled with infinite study and training. 
The Haigs, the Petains and the Pershings were 
not the product of four months' training in an 
army camp. It does not detract from the ad- 
mirable qualities displayed by our American 
soldiers to say that not one of them, drafted 
under the Selective Service Regulations, could 
have become a Pershing within the limited time 
available. The future industrial organization, 
it is conceded on all hands, must be highly pro- 
ductive. "What the nation needs is undoubt- 
edly a great bound onward in its aggregate 
productivity," says the British Labor Party. 
Our Secretary of Labor, the former Vice-Pres- 
ident of the American Federation of Labor, 

1 Berton Braley : "The Thinker." 



24 American Labor Policy 

says : "The employer and the employee have 
a mutual interest in securing the largest pos- 
sible production with a given amount of la- 
bor/' * Under the seal of the United States 
Department of Labor, during the war circu- 
lars were distributed like the following: "Get 
the habit of doing things right. This will 
mean: Greater Production, Less Waste, In- 
creased Earnings.'' "Boot Straps. We 
don't try to pull ourselves up by our boot straps 
— do we ? Then why try to get richer by pro- 
ducing less? However much we may want 
better ways of distribution, we must first have 
Greater Production in order to win this war. 
By the further development of those qualities 
of enterprise, initiative, originality, and hustle, 
characteristic of the American people, labor 
can earn an additional debt of gratitude from 
our country." "Our Children! To win this 
war we all must do our best regardless of 
profit. Production is the big thing. This ap- 
plies to wage earners as well as employers. 

x The Nation's Business, October, 1917, p. 66. 



Constitutionalizing Industry 2$ 

We cannot start by stopping; we cannot mul- 
tiply by dividing; we must forget our preju- 
dices and drive ahead." These injunctions, 
applied in war times, are equally applicable in 
times of peace. Those who desire "better 
ways" of distribution must first find ways of 
greater production. 

Certainly to stop the wheels of production by 
strikes or lockouts or industrial revolution in 
order to secure a better order of distribution 
can only be justified if there is no other way. 



THE EFFORT TO (^INSTITUTIONALIZE 
INDUSTRY 

In the reports of the Commission of In- 
quiry into Industrial Unrest in Great Britain, 1 
arguing in support of a system for organizing 
industry in which organized employees and 
organized employers practically control the 
management of the industry, one of the groups 
of commissioners says : "If we may adopt the 

1 Bulletin of the U. S. Bureau of Labor Statistics No. 237. 



26 American Labor Policy 

language of political philosophy it would give 
industry a large measure of constitutional gov- 
ernment in place of what in theory was an auto- 
cratic and absolutist system, but has long since 
ceased to be so in practice." * The experi- 
ments of the Colorado Fuel & Iron Company, 
the Standard Oil Company, the Protocol in the 
garment industry, 2 are all experiments in the 
direction of "constitutionalizing industry." It 
will be conceded that when it is proposed to 
establish by law a method of organization of 
industry which is to provide a legal form of 
government in each industry, the knowledge 
and experience of the lawyer should be of serv- 
ice. But here a word of caution. The train- 
ing of the lawyer does not ordinarily fit him 
for the task, for no scheme of organization of 
industry can survive which does not take ac- 
count of all the business, social and economic 
factors, and it is rare that the lawyer is 
equipped in all of these fields. To the extent, 

2 "Law and Order in Industry," by the writer. 



Morale in Industry 27 

however, that he has had experience in these 
fields and in all of them, may he safely trust 
his own judgment, and even then he may trust 
his judgment but little because the factors are 
so numerous and so complex. If he can suc- 
ceed, however, in correlating all of these fac- 
tors, he will have in hand "the facts of the 
case" and is then ready to apply principles. 
Obviously, it will be impossible to present 
within the limits of this book all of the facts, 
and there is the certain risk that in the state- 
ment of some facts some others may be over- 
looked. But we should at the threshold be 
certain to take cognizance of dangers we must 
avoid. 



MORALE IN INDUSTRY, 

The intangible psychological factor of 
morale was reckoned very high by Napoleon in 
his day. "In war," said he, "the moral is to 
the physical as three to one." We in our day 
know that the proportion is greater. The 



28 American Labor Policy 

chart kept by the Secretary of War, showing 
the decline and elevation of morale in Ger- 
many and its bearing upon the success and 
failure of the German Army, showed that 
there was almost immediate reaction upon the 
fighting at the front of the rise or fall of the 
morale back of the front, and we know that 
Cantigny, Chateau-Thierry, Belleau Wood 
and the Argonne Forest were made possible for 
the Allies only through the splendid morale of 
the American Army. The Y. M. C. A. work, 
the Y. W. C. A. work, the Jewish Wel- 
fare Board, the Salvation Army — all these 
agencies were fostered and encouraged by our 
Government as military agencies because of 
their value in keeping up the morale of our 
men, and the circulars from which we have 
already quoted were part of the well planned 
work of the Department of Labor to keep 
up the morale of the producing force of 
our country during the war. Our difference 
with the enemy upon this subject of morale was 
not that he disagreed with us concerning its 



Morale in Industry 29 

importance, but that his methods for endeavor- 
ing to destroy our morale, as well as for pre- 
serving his own, seemed to be grotesquely un- 
intelligent and proved to be psychologically 
unsound. Much has been learned through the 
war of the connection between mental attitude 
and exertion of physical power. In the meth- 
ods for preserving morale to be employed many 
differences of opinion have been developed. 
Mr. Fosdick has told the story 1 of the differ- 
ences that arose with the French in the fight 
against venereal disease. The French be- 
lieved in "toleration" and "regulation." They 
had for generations licensed brothels and reg- 
istered prostitutes. We were for "absolute 
continence" and we won out. The result of 
the experiences of the American officials was 
that they were able to convince the French 
Government that what Abraham Flexner 
called "abolition" as distinguished from "regu- 
lation" is the only effective mode of combating 

1 Raymond B. Fosdick : "The Fight Against Venereal Dis- 
ease." The New Republic, November 30, 1918. 



30 American Labor Policy 

this age-long evil. And it is only fair to the 
French to say that this represents a change in 
attitude upon the part of our own military lead- 
ers. General Pershing frankly confesses that 
he has completely changed his policy regarding 
camp followers which he followed in his march 
into Mexico two years ago. "The cause of his 
taking at that time a course which he now re- 
grets was not any lack of revulsion in his own 
soul, but merely the dominance of the old iron- 
clad army tradition which taught that certain 
evils are inevitable in army life. To-day with 
larger outlook General Pershing stoutly re- 
fuses to regard any wrong thing as inevitable 
in the Army or anywhere else. He does not 
hesitate to acknowledge to intimate friends a 
complete reversal of attitude on this subject 
since his Mexican experience/' * With these 
lessons fresh in mind of morale affecting the 
putting forth of material strength, are we not 
obliged now to consider afresh, disregarding 

1 Literary Digest, November 16, 1918, quoting from the Con- 
gregationalist, Boston. 



Morale in Industry 31 

all our age-old prejudices, the relationship of 
morale to productivity in industry? If we 
think this through clear to the end, we shall 
have a social revolution. We shall turn indus- 
try upside down and inside out ; but we shall do 
it in orderly fashion, and we will no more dis- 
turb the processes of industry in the reorgan- 
ization than we disturbed the fighting of our 
men while introducing the newer attitude to- 
ward their morale. Space will not permit us 
to go into all the details of this phase of our 
problem. We shall pass rapidly over them. 
First of all, we shall say, of course, that no 
man or woman will be socially productive un- 
less he or she is in good physical health. We 
shall say, of course, the "living wage/' what- 
ever that may involve. We shall say, of 
course, proper housing conditions. We shall 
say, of course, continuous employment. How 
can a man do his best work if he lives con- 
stantly in dread that his family may not have 
enough to eat? We shall prescribe clean and 
sanitary factories, and, we shall treat the 



32 American Labor Policy 

worker, of course, as we have treated the sol- 
dier, as a human being. "What is wanted/' 
said the British Commission on Industrial Un- 
rest, "is a new spirit; a more human spirit, one 
in which economic and business considerations 
will be influenced and corrected, and, it is 
hoped, will be eventually controlled by human 
and ethical considerations. To bring this 
about it must be realized that the main cause 
of unrest lies deeper than any merely mate- 
rial consideration, that the problem is funda- 
mentally a human and not an economic prob- 
lem. Theoretically, industry is carried on by 
the cooperation of capital and labor ; in practice 
it is carried on by a system of checks and bal- 
ances, one in which the equilibrium is easily 
upset by a little additional momentum on one 
side or the other. It often appears as if it 
were the resultant of the constant conflict of 
forces rather than of a cooperative effort/' * 
The New York Chamber of Commerce Com- 

1 Bulletin of the U. S. Bureau of Labor Statistics No. 237, 
p. 169. 



Morale in Industry 33 

mittee on Industrial Problems and Relations 
says: "It has been proven over and over 
again, in industry, that irrespective of such 
conditions as rate of wages paid, as cost of 
management, or as rates of interest or other 
return on capital, the condition of hearty co- 
operation outweighed all the others. It is a 
by-word of production that the cheapest and 
best product is compatible with the largest 
earnings for wage-earners, the highest salaries 
for managers, and the largest profits for capi- 
talists, only providing that all three elements 
fully cooperate. In this we find the moral fac- 
tor of manufacturing which outweighs all 
the physical factors. 39 l A step forward has 
been taken by the British Labor Party in its 
clear recognition of the fact that the workers 
of the world are not merely the manual work- 
ers, but the "brainworkers" and the various 
professional men. In opening the doors to the 
"clerk/' the teacher, the doctor, the minister of 
religion, the British Labor Party "claims the 

1 Italics ours. 



34 American Labor Policy 

support of four-fifths of the whole nation." 
But still we suffer from the Aristotelian 
philosophy that somehow or other there is a 
clear division of human beings into laboring 
and leisure classes. 1 As pointed out by John 
Dewey, increasing political and economic 
emancipation of the "masses" has affected edu- 
cation. The development of a common school 
system of education, public and free, "has de- 
stroyed the idea that learning is properly a 
monopoly of the few who are predestined by 
nature to govern social affairs." 2 Neverthe- 
less it is true that there prevails very generally 
the idea that "a truly cultural or liberal educa- 
tion cannot have anything in common, directly 
at least, with industrial affairs." 3 

It is frequently said that, in the last analy- 
sis, the progress of industry depends upon the 
operation of economic laws; but precisely as 
we have within the period of our own partici- 

1 See Dewey : "Democracy and Education," chapter on 
"Labor and Leisure." 

2 Idem., p. 300. 
%Idem., p. 301. 



Morale in Industry 35 

pation in the war changed our attitude towards 
licensed prostitution, we are changing with 
lightning-like rapidity our conceptions of what 
constitutes "economic law." The late Pro- 
fessor Carleton H. Parker, in his paper "Mo- 
tives in Economic Life" (read before the 
Philadelphia meeting of the American Eco- 
nomic Association), 1 pointed out that econo- 
mists had speculated little on human motives; 
that they had not been sufficiently curious 
"about the great basis of fact which dynamic 
and behavioristic psychology has gathered to 
illustrate the instinct stimulus to human ac- 
tivity." 2 It is M'Dougall, the Oxford social 
psychologist, who says that "It would be a libel 
not altogether devoid of truth to say that the 
classical political economy was a tissue of false 
conclusions drawn from false psychological 
assumptions." 3 We need not accept, for the 
purposes of our discussion, the inventory of in- 

iThe American Economic Review, Vol. VIII, No. 1 (Sup- 
plement), March, 1918. 

2 P. 214. 

3 P. 215. 



36 American Labor Policy 

stincts made by Parker in the article to which 
we refer, nor confine ourselves to the conclu- 
sions of modern psycho-analysts like Freud 
and Jung and Adler. There are certain com- 
monplace and common-sense facts to which we 
have blinded ourselves heretofore and which 
it is vital, if we are to draw up a plan for the 
constitutional government of industry, we take 
account of in our reckoning. No pilot ever 
steered ship upon the rocks with less care for 
the sounding of the buoys than we should, if 
we ignored the soundings that daily ring in our 
ears. We know that the real incentive to 
work is interest in the work, not the pay got 
out of it. The production of a scholarly brief 
gives the author greatest satisfaction not 
through the drink and food and clothing which 
he may purchase out of the fee received by way 
of compensation, but in the sheer joy of intel- 
lectual research and creative production. As 
matter of fact, he is paid twice, once in the 
joy of doing the work, and again in the coin 
he receives. This element of interest is the 



Morale in Industry 27 

factor of morale in productivity. There is no 
Egyptian mystery to be dug from the tombs 
in the every day fact that boys and girls prefer 
to go into offices rather than into factories. 
There is no office, law or business, so dull or 
so stupid which is not more interesting for the 
young messenger than the feeding of a ma- 
chine in a factory. The bookkeeper does more 
than keep track of accounts. Through his 
trial and balance sheet he acquires an under- 
standing of the entire business, its venture as 
an enterprise — the relationship of all its finan- 
cial details to the total result. The salesman 
has the interesting experience of travel and 
contact with differing types of human nature 
— perhaps the most interesting of all human 
experiences. The servant girls who braved 
the rigor of stormy weather and became con- 
ductorettes upon our street cars found in the 
contact with new as well as with familiar faces 
an interest more than compensatory for physi- 
cal hardships. The acquisition of habits of 
care and accuracy in the drawing of legal in- 



38 American Labor Policy 

struments, knowledge of the forms, as well as 
knowledge of the way in which actually to 
practice law, is more likely to be acquired by 
the stenographer and typewriter who later 
takes up the law than by the law clerk who 
comes fresh from the university. It is this 
interest in things going on and being done and 
in process of creation that makes life worth 
living. Professor Taussig caught this in "In- 
ventors and Money-Makers." Says he: 
"The moral teacher tells us we should do our 
daily work with joy. The economist com- 
monly tells us that it is an effort undergone 
because compensated by wages or profits, a 
'disutility/ a sacrifice. Underlying almost all 
economic theory is the assumption that work 
is an irksome thing, done for pay and in pro- 
portion to pay." 1 And yet the Edisons in in- 
dustry get their greatest joy out of "the fun 
of it." "Every one of us is conscious of a 
satisfaction in doing his work handily and 
well, in seeing the product grow under his own 

2 Pp. 55-56. 



Morale in Industry 39 

Hands." * Taussig very properly refers to the 
modern organization of industry as tending to 
"smother" this satisfaction "in a great and 
probably growing proportion of men, — a most 
ominous aspect of our social and economic sys- 
tem." * And in her recent little book, "Cre- 
ative Impulse in Industry," Helen Marot also 
concludes that the morale of industry is not 
improved by the conception that the "only rea- 
son a sane man can have for working" is "be- 
ing paid off," or that "after he is paid off the 
assumption is his pleasure will begin." 2 The 
vice of the modern factory organization, she 
says, lies in its destruction of "creative desire 
and individual initiative as it excludes the 
workers from participation in creative experi- 
ence." 3 Nearly all labor union leaders accept 
the older economic philosophy that work is 
something to be endured in order to secure 
leisure. "They desire a shorter work day 
among other things so that there may be op- 

1 p. 57. 

2 p. 9. 

3 p. 12. 



40 American Labor Policy 

portunity for leisure and recreation/' says 
John P. Frey, editor of the International 
Molders' Journal, writing of "The Ideals in 
the American Labor Movement." 1 "They 
desire to terminate each day's labor with suf- 
ficient vitality left to enjoy the society of their 
fellow men, to study and to better prepare 
themselves for the problems which face them 
as wage earners, to enjoy some of the blessings 
which the Almighty has so bounteously spread 
at every hand." 2 Thus labor unionist and 
capitalist together conspire to secure general 
acceptation of the doctrine of human conduct 
that the less work you do and the more you 
can make that pay, the better member of so- 
ciety you are. Whatever work you do — ac- 
cording to this doctrine — you do under com- 
pulsion, in order that out of what you receive 
you shall then be able to enjoy life. How can 
such a philosophy of political economy increase 
the productivity of a nation ? Does it not lead 

1 The International Journal of Ethics, July, 1918. 

2 Pp. 494-5. 



Morale in Industry 41 

inevitably to constant effort to shorten the 
hours of labor and to increase the compensa- 
tion, regardless of the cost of production and 
regardless of the cost of living following the 
cost of production? Instead of eliciting the 
interest of the worker in his work, we cultivate 
a morale which detracts from his work and we 
ourselves set myriads of examples by which 
to confirm him in the tendency. The political 
economy is the lazy man's political economy. 
It is un-American, it is contrary to all our other 
habits of thinking, and it is opposed to every 
plank in every platform upon which we set out 
to conduct the war. Not for a single instant 
did we think of making either our soldier at the 
front or our riveter in the shipyard a mere cog 
in a war machine. We kept constantly before 
him the aim and the purpose of the great cre- 
ative task in which he was engaged and empha- 
sized the contribution which he was to make. 
We no more expected by emptying into their 
hands the contents of pay envelopes our men to 
risk their lives at the front or to put forth 



42 American Labor Policy 

their best energies in the munitions plants 
than we expected to win the war with paste- 
board aeroplanes and paper shells. Are we 
not rapidly coming to the conclusion that as 
we discover the ethical conception of the sanc- 
tity of sex relationship to be at one with the 
utilitarian conception of sound, healthy sol- 
diers, we shall likely discover that the ethical 
conception of personal and human worth is at 
one with the conception of sound industrial or- 
ganization? But how else are we to conduct 
a democracy wherein the determining policies 
of the nation are the result of the judgments 
and opinions of the majority? The demo- 
cratic conception is that all men have personal 
worth, that there is a dignity to the opinion of 
every man. How can we expect emergence of 
enlightened public opinion upon those matters 
essential to a sound and well-ordered democ- 
racy if the very processes of industry contract 
the mind, destroy the creative instincts, and 
lessen the growth of individual men and 
women? If this conception of a new political 



Morale in Industry 43 

economy resultant from a better understanding 
of human nature is accepted by the industrial 
leadership of our country, it means a social 
revolution. In principle it was accepted at the 
Atlantic City meeting by the War Emergency 
Congress, and the presiding officer did right in 
warning the business men present that they 
might not immediately realize the consequences 
of the doctrines to which they subscribed. 

Nevertheless, no forward looking legal plan 
is destined even to partial fruition unless it 
starts with these fundamental considerations, 
whether they be called political economy, sound 
ethics, or modern psychology. In the light of 
our military experience, they can best be de- 
scribed as the factor of morale in industry. 

If law is to be regarded not as the dull 
science of established precedent, but also the 
art of constructive social engineering, we 
shall need always to keep in mind these factors 
of our problem if we are to arrive at a sound 
result. 



44 American Labor Policy 

HIRING AT WILL THE RIGHT OF DIS- 
CHARGE THE RIGHT TO STRIKE 

THE INTEREST OF THE 

COMMUNITY 

The present legal relationship between em- 
ployer and employee, especially in the fac- 
tories, is one of "hiring at will" : that is to say, 
the employee is free to leave when he chooses, 
the employer is free to discharge when he 
chooses. This is the legal situation. The eco- 
nomic situation is perilous. Already men are 
becoming aware of the fact that under this 
arrangement the economic loss is tremendous. 1 
Investigation by the New Jersey State Depart- 
ment of Labor and Statistics of the cost of 
unemployment to 2556 firms alone disclosed 
a loss of $363,000,000 in one year. Not 
only is this the cost in loss of output, but 

1 See "Steadying Employment," Supplement to the Annals 
of the American Academy of Political and Social Science, 
May, 1916. See "Stabilizing Industrial Employment," the An- 
nals of the American Academy of Political and Social Science, 
May, 1917. See also "The Problem of Labor Turnover," by 
Paul H. Douglas, the American Economic Review, June, 1918. 



Hiring and Firing 45 

managers are fast coming to realize that un- 
employment or slack time is the chief cause of 
the rapid shift of employees from shop to shop. 
As one employer puts it: "We found that, 
while our men could make $3 or $4 a day when 
they worked, they rarely did because of the 
time that was lost through slack orders, wait- 
ing for changes in the dyes, etc. As a result, 
they were dissatisfied and we couldn't hold our 
best men." x Another puts the proposition 
conversely : "We can keep our help and, inci- 
dentally, get the best help of our class, not 
because we pay a higher rate of wages — for 
as a matter of fact our rate is somewhat lower, 
— but because we guarantee our help steady 
employment and our twenty-five years' repu- 
tation bears out our claim." * Analysis of 
the employment figures for one year in 
fifty-seven Detroit plants disclosed that the 
average turnover of employees was 252 per 
cent. 2 In the Ford Company, from October, 

1 "Steadying Employment," p. 45. 

2 Boyd Fisher : "How to Reduce the Labor Turnover," the 



46 American Labor Policy 

191 2, to October, 191 3, 54,000 men were hired 
to maintain an average working force of 
13,000 — a labor turnover of 416 per cent, for 
one year. Of course, the effect of unemploy- 
ment upon the community is not confined to 
the economic loss. It is the chief contributing 
cause to conditions which make it necessary 
to support charitable institutions and hospitals. 
More than that, it is the disease-breeding germ 
that leads to social insanity. Professor 
Parker wrote before his death : * "The Amer- 
ican I. W. W. is a neglected and lonely hobo 
worker, usually malnourished and in need of 
medical care. He is as far from being a 
scheming syndicalist, after the French model, 
as the imagination might conceive." Dis-con- 
tinuity of employment is probably the chief 
provocative cause of industrial unrest. A 
large migratory working force "is" not only 
"economically an intolerable waste" but "so- 

Annals of the American Academy of Political and Social Sci- 
ence, May, 1917, p. 14. 

i'The I. W. W.," the Atlantic Monthly, November, 1917, p. 
651, at p. 656. 



Hiring and Firing /\r/ 

daily it is a disintegrating element in society. 
It signifies, too often, men without responsi- 
bility of home or home-making, men possessed 
of a feeling of injustice against lack of con- 
tinuity of employment, serving as inflammable 
material for beguiling agitators to work 
upon." 1 Let us turn for a moment to the 
worker's point of view. The worker always 
feels that the job belongs to him, after he has 
been in it for any length of time. "The work- 
ers," says Grant, "feel they have a property 
right in the jobs they formerly held. That the 
law holds they have no such right, and that 
anyone who is willing to accept the conditions, 
shall have a right to fill the jobs, without fear 
of molestation, does not alter the situation in 
the minds of the workers." 2 The British 
Commissioners of Inquiry into Industrial Un- 
rest for Wales and Monmouthshire, in their 

1 Report of President Wilson's Mediation Commission, New 
York Evening Post, February n, 1918. 

2 Luke Grant : Report on The National Erectors' Associa- 
tion and The International Association of Bridge and Struc- 
tural Ironworkers. U. S. Commission on Industrial Rela- 
tions, p. 109. 



48 American Labor Policy 

recommendations, say that there are two prin- 
ciples which appear to them to be fundamental, 
one of which is "That every employee should 
be guaranteed what we may call 'security of 
tenure'; that is, that no workman should be 
liable to be dismissed except with the consent 
of his fellow workmen as well as his em- 
ployer/' x Without accepting this statement 
with all of its implications, it nevertheless indi- 
cates the growing recognition of the fact that 
"security of tenure" is one of the aims of the 
worker. In such seasonal industries as the 
garment industries, it proved to be the rock 
upon which the attempt at "constitutionalizing 
the industry" went to smash. 2 The free right 
of the employer to discharge is undoubtedly 
one of the most effective measures for main- 
taining discipline in the factory — when there 
is an available surplus supply of labor. When 
there is no surplus but instead a shortage of 
labor, it is a blank cartridge. The experts 

1 Bulletin of the U. S. Bureau of Labor Statistics No. 237, 
p. 170. 

2 See "Law and Order in Industry," by the writer. 



Hiring and Firing 49 

who are now studying problems of employment 
are giving a large part of their attention to the 
matter of "hiring and firing/' Too often the 
foreman uses his power merely as a means of 
discipline, or, as one large employer has put 
it, "to keep the fear of God in their hearts." 
The unsupervised authority of the foreman 
contributes to the high labor turnover. Not 
only does he bring in misfit help, who will soon 
leave, and discharge needlessly, but his arbi- 
trary exercise of power drives many away. 
One of the largest employers of Philadelphia, 
who works under the foreman system, says: 
"I have time and again seen my foreman do 
things that were absolutely cruel; and yet I 
am powerless to prevent it." * A large lace 
manufacturer told the Philadelphia secretary 
of the National Lace Weavers' Union: "I 
have more strikes and labor disputes as a re- 
sult of the foolish and arbitrary acts of some 
foreman than any other cause." * But it is 
safe to say that employers are hardly ready to 

1 "Steadying Employment," p. 73. 



£0 American Labor Policy 

accept the suggestion of the Commissioners 
from Wales that discharges should only be had 
with the consent of fellow employees. When 
the City Manager of Dayton recently disci- 
plined an inspector of police upon serious 
charges, the welfare association of the pa- 
trolmen of Dayton insisted that the patrolmen 
would resign in a body if the inspector did not 
get a "square deal." At that time the City 
Manager had already approved the dismissal 
of the officer, and his appeal was in the hands 
of the Civil Service Commission. This con- 
duct on the part of the welfare association of 
the police department resulted in the City Man- 
ager issuing an order forbidding membership 
in the association, upon the ground that it did 
not really tend a to protect the public interests 
and promote discipline in the department." * 
Similarly, the City Manager of Altoona, Penn- 
sylvania, having suspended a captain in the 
fire department, received notice from a com- 

1 National Municipal Review, November, 1918, Vol. VII, No. 
6, Total No. 32, p. 647. 



Hiring and Firing 51 

mittee of the men that unless the captain was 
granted pay for the period of his suspension, 
they would leave the service. The orders 
made by the Manager were issued upon the 
recommendation made by the national under- 
writers for improving the service and after 
consultation with the chief of the bureau of 
fire. 1 In the garment industry, after the clash 
of 191 5, the Council of Conciliation, consisting 
of Dr. Felix Adler, Chairman, Louis D. Bran- 
deis, Henry Bruere, George W. Kirchwey, 
Charles L. Bernheimer and Walter C. Noyes, 
found that "the principle of industrial effi- 
ciency and that of respect for the essential 
human rights of the workers should always be 
applied jointly, priority being assigned to 
neither. Industrial efficiency may not be sac- 
rificed to the interests of the workers, for how 
can it be to their interest to destroy the busi- 
ness on which they depend for a living, nor 
may efficiency be declared paramount to the 
human rights of the workers; for how in the 

1 Idem., pp. 647-8. 



52 American Labor Policy 

long run can the industrial efficiency of a coun- 
try be maintained if the human values of its 
workers are diminished or destroyed. The 
delicate adjustment required to reconcile the 
two principles named must be made." And 
applying this general principle to the practice 
of hiring and discharge, they lay down the 
following : 

I. Under the present competitive system, the 
principle of industrial efficiency requires that 
the employer shall be free and unhampered in 
the performance of the administrative func- 
tions which belong to him, and this must be 
taken to include : 

(a) That he is entirely free to select his 
employees at his discretion. 

(b) That he is free to discharge the incom- 
petent, the insubordinate, the inefficient, those 
unsuited to the shop or those unfaithful to 
their obligations. 

(c) That he is free in good faith to reorgan- 
ize his shop whenever, in his judgment, the 



Hiring and Firing 53 

conditions of business should make it neces- 
sary for him to do so. 

(d) That he is free to assign work requiring 
a superior or special kind of skill to those em- 
ployees who possess the requisite skill. 

(e) That while it is the dictate of common 
sense, as well as common humanity, in the 
slack season to distribute work as far as pos- 
sible equally among wage earners of the same 
level and character of skill, this practice can- 
not be held to imply the right to a permanent 
tenure of employment, either in a given shop 
or even in the industry as a whole. A clear 
distinction must be drawn between an ideal 
aim and a present right. 

It is this delicate problem of adjusting the 
principle of industrial efficiency with the essen- 
tial human rights of the workers, without as- 
signing priority to either principle, which we 
must solve. 

In the award of the National War Labor 
Board in the case of the employees against 



54 American Labor Policy 

Sinclair Refining Company, of Coffeyville, 
Kansas/ the following principles were laid 
down: "No employee shall be discharged as 
incompetent after 30 days in the employ of the 
company unless for good and sufficient cause, 
the determination of which shall be left to the 
decision of the superintendent, after confer- 
ring with the coopers' shop committee. . . . 
No cooper shall be discharged or removed 
from the service of the company without just 
and sufficient cause. Employees who believe 
they have been unjustly dealt with may pre- 
sent their grievances to the shop committee of 
the coopers or their representatives on the 
shop committee, who will endeavor to have the 
grievances adjusted, without delay, with the 
shop foreman. If adjustment with the fore- 
man is impossible, the case may be appealed 
to the higher officials in charge. Should it 
be found that an employee has been unjustly 
discharged or dealt with, he shall be reinstated 
and paid for all time lost," In the recently 

1 Docket No. 395. 



Hiring and Firing 55 

announced plan of the Standard Oil Company, 1 
provision is made for an organization of the 
men and for the securing of protection against 
unjustifiable discharge. Under this arrange- 
ment certain offenses justify suspension or dis- 
missal without notice. These include carry- 
ing concealed weapons, fighting, stealing, fail- 
ure to wear safety goggles, etc., insubordina- 
tion, etc., while in other cases an employee may 
not be discharged without first having been 
notified that a repetition of the offense will 
make him liable to dismissal. A foreman will 
not discharge or suspend. He must report the 
case to the Employment Department, from 
whose decision the employee has a right of ap- 
peal. Provision is made for joint conferences 
of employees' representatives and company 
representatives. Similarly, in the plan of the 
Colorado Fuel & Iron Co., provision is made 
for organization of the employees and the re- 
dress of grievances. 

There is still another factor to be considered. 

1 New York Times, April 7, 1918. 



56 American Labor Policy 

Not only in police and in fire departments is 
continuity of employment vital to the needs 
of the community, but in the operation of rail- 
roads "it is against the public interest that men 
employed on railroad or other public utilities 
may, without notice, exercise their right to 
quit their jobs in a group thus crippling if not 
totally arresting the operations of public utili- 
ties, to the great damage of the public." 1 In 
the second street car strike of 19 16, a high 
power dynamite bomb blew up the 110th Street 
station of the Lenox Avenue Subway on Oc- 
tober 25th. It gouged a hole in the solid con- 
crete and steel platform and the roadbed, shat- 
tered every pane of glass in the station, and 
injured four persons. Incidentally, it stopped 
for the time one of the vital arteries of traffic 
of an entire community. For this crime one 
of the secretaries of a local of the Amalga- 
mated Association of Street and Electric Rail- 
way Employees was convicted on March 9th, 

1 Findings in Street Car Strike by Public Service Commis- 
sion, First District, New York — Memorandum of August ioth, 
1916. 



Hiring and Firing 57 

the jury being out but twelve minutes. Fol- 
lowing the street car strike in Brooklyn in No- 
vember of 1 918, ninety-two people were killed 
and scores were injured by the use, it is al- 
leged, of a suddenly hired motorman of inex- 
perience, who crashed his car into a tunnel 
wall and ground other cars into splinters. For 
this, as we are writing this article, the press 
reports that the President of the Brooklyn 
Rapid Transit Co. and several other officers 
are indicted for manslaughter. The effect of 
a strike upon the revenues of a street railway 
company is shown in the table in the foot- 
note. 1 

1 Comparison between the last four months of 1916 and 
1915 clearly shows the effect of the strike on the revenues of 
the companies: 

Increase Ratio 
September-December or (D) 1916 to 
Group I 1915 1916 decrease 1915=100 
Third Ave. system $3,672,080 $2,110,378 D $1,561,701 57.5 
Second Ave. R. R. 292,009 177,580 D 114,429 60.8 
New York Rail- 
ways 4,567,255 3,041,122 D 1,526,132 66.6 

N. Y. & Queens 
Co. Ry 465,253 420,960 D 44,293 90.5 

Total $8,996,598 $5,750,042 D $3,246,556 63.1 



58 American Labor Policy 

But the community suffers in yet another 
aspect. It loses the very valuable services of 
competent men. The Receiver of the Second 
Avenue Railroad, one of the companies in- 

Group II 

Interborough Sub- 
way $6,191,011 $7,007,860 $816,849 !I3. 2 

Interborough Ele- 
vated 5,154,419 6,134,909 980,490 1 19.0 

Group III 

Brooklyn Rapid 
Transit $9,033,586 $9,516,303 $482,717 105.3 

Hudson & Man- 
hattan R. R 1,225,757 1,350,898 125,141 1 10.2 

Queens lines, excl. 

N. Y. & Q. Co... 394,604 417,703 23,100 105.8 

Note. — Additions and subtractions were made before 
the cents were dropped. 

The first group consists of the surface railways in Man- 
hattan and The Bronx together with one company in Queens 
that was seriously involved. In the second group are the In- 
terborough subway and elevated lines, on which a strike was 
called but did not seriously interrupt traffic. The third group 
comprises practically all of the remaining companies of the 
city which were not involved in the strike. 

The passenger receipts of the surface railways in Group I 
during the entire period amounted to 63 per cent, of their re- 
ceipts in the corresponding months of 1915, having declined 
from 9 to sYa million dollars. The loss was therefore at least 
354 million dollars. It was probably greater since the 1916 
receipts would normally have exceeded the 1915 receipts as a 
result of natural growth of trafiic. Assuming a probable 



Hiring and Firing 59 

volved in the strike of 191 6, testified that men 
who before the strike assured him that they 
could not be taken away "with a horse and 
wagon/' nevertheless went out in the strike. 

rate of increase of 5 per cent., which is less than the growth 
of traffic on the Brooklyn and Long Island lines not involved 
in the strike, the total loss to the first group of companies 
may be computed to be $3,750,000. 

The strike also imposed upon the companies additional ex- 
penses. These, however, were offset by savings in wages of 
regular employees in the case of most of the companies, so 
that the net loss was not quite as large as the gross loss ex- 
cept in the case of the Third Avenue companies. The follow- 
ing table summarizes losses in profits as well as decreases in 
receipts : 

Loss in Car Mileage, Passenger Receipts and Profits of 
Roads Adversely Affected by the Strike, 1916 

r Decrease in Loss in profits 

mileage P assen S er (operating 

Sept.-Dec. ^ . receipts * income) 

Amount Per Amount Per 

1915 

cent. cent. 

New York Rail- 
ways 66.40 $1,526,132 33.41 $1,105,021 68.62 

N. Y. & Q. Co. 
Ry 86.09 44,293 9,52 14,894 — 118.28 

Third Avenue 

Ry 61.01 1,561,701 42.53 1,571,947 ~ 119.32 

Second Avenue 

R. R 65.34 114,429 39.19 93,074 — 116.70 

65.44 $3,246,556 36.09 $2,784,938 92.22 
* Includes insignificant amounts of revenue from express, etc. 



60 American Labor Policy 

He said : 'There are men now who have been 
out going on six months, and they have never 
shown up to go to work. You will see them 
walking around by the depot. They have 
never asked to go to work/' 

There is still one more phase of this factor 
of impermanence of tenure. The corollary of 
the right to discharge at any time because of 
the "at will" character of the employment is 
the right to strike at any time. In the hear- 
ings before the Public Service Commission of 
the First District, New York, in 19 17, upon 
what was generally called the "Straus Plan," 

August 

Richmond com- 
panies 82.59 $15,721 1778 $18,377 47.38 



Total 65.68 $3,262,27735.91 $2,803,315 91.76 

In the case of the Third Avenue system an operating profit 
or income (before interest and dividends) of $1,317,482 in 
1915 was replaced by a deficit of $254,466 in 1916, a decrease of 
$1,571,948, or 119 per cent. The Second Avenue and the New 
York & Queens County Railway companies also realized a 
deficit instead of a profit from operation while the New York 
Railways lost 69 per cent, of its operating income or net earn- 
ings. For all the companies listed, net earnings fell from 
$3,055, 099 to $251,693, a decrease of $2,803,316, or 92 per cent. 



Hiring and Firing 61 

the advocates of this "freedom of contract re- 
lationship" opposed any attempt to change the 
insecurity of tenure. The President of the 
Brooklyn Rapid Transit Co. said : "We have 
a splendid body of men who are trying in their 
own way, and, I think, the right way, to solve 
these difficult problems, and we ask that they 
be left alone to solve them in that way so long 
as it is satisfactory to them and insures public 
comfort." 1 Yet twenty-two months later this 
very satisfactory condition culminates in the 
indictment of the President for manslaughter 
as one of the casual incidents of another strike, 
and two months later a receivership of the rail- 
road takes place! And taking their stand 
upon precisely the same principle of absolute 
freedom of contract and right to leave at any 
time, labor leaders made the same "let us 
alone" argument. They insisted upon the 
right to leave "at any time and for any or no 
reason." In the garment strike of 1916, fol- 
lowing the lockout declared by the manufac- 

1 Minutes of Hearing, February 8, 1917, p. 139. 



62 American Labor Policy 

hirers, the union conceded the right of the 
manufacturers "to hire and discharge their 
employees" provided "that, for any arbitrary 
and oppressive exercise of this right, the work- 
ers should have 'the right to strike/ " And 
this finally culminated in an amendment of the 
Protocol, which provided : 

"The employer shall be free, according to 
the dictates of his business, to increase or de- 
crease the number of his employes to meet 
the conditions in his factory, and to retain such 
of his employes as he may desire on the basis 
of efficiency. 

"The workers, however, shall have the right 
to strike against any employer who exercises 
the power to increase and decrease his work- 
ing force, as above set forth, arbitrarily and 
oppressively, or who violates any express pro- 
vision of this agreement/' 

The Protocol which this amended, drawn up 
in 1910, 1 provided in principle for the elimi- 
nation of all strikes for any cause and for a 

1 See "Law and Order in Industry," Appendix A. 



Hiring and Firing 63 

system of review of discharges before boards 
of grievances, chief clerks, committees on im- 
mediate action, or boards of arbitration. 1 
This effort at constitutionalizing the industry, 
by the use of juridical machinery, broke down 
because the employers insisted that imperma- 
nency of tenure was necessary for the mainte- 
nance of discipline and efficiency, and the em- 
ployees insisted upon their time-honored right 
to strike at any time. It is the writer's experi- 
ence that there must be yielding upon both sides 
before a sound working basis can be established. 
"Analogy is a necessary mode of all our 
thinking/' says Knowlson, 2 "and genius is 
often another name for the power to see simi- 
larities in phenomena, natural or mental, that 
have hitherto been undetected." "An intuitive 
perception of the similarity in dissimilars," 
making the thinker "master of metaphor," 
Havelock Ellis says, "is the mark of genius." 3 
"Thus it comes about," says he, "that the 

1 See "Law and Order in Industry." 

2 T. Sharper Knowlson: "Originality," p. no. 

3 "Impressions and Comments," pp. 80-81. 



64 American Labor Policy, 

thinkers who survive are the thinkers who 
wrote well and are most nearly poets." It is 
no original discovery of the writer to find a 
very close analogy between elements in the 
international legal situation and elements in 
the industrial legal situation. It is true that 
Germany relied upon her army and England 
relied upon her navy for the enforcement of 
international law, and it is true also that the 
conception of international law entertained by 
Germany was in conflict with the conception of 
international law entertained by England and 
by the United States. The latter two coun- 
tries are committed to the first of the two 
schools of philosophical thinkers or historians 
distinguished by Viscount Bryce. The be- 
lievers in the English common law lay stress 
on "the power of Reason and of those 
higher and gentler altruistic emotions which 
the development of Reason as the guide of life 
tends to evoke and foster" and find in these 
tendencies "the chief sources of human prog- 
ress in the past, and expects from them its fur- 



Hiring and Firing 65 

ther progress in the future." This philosophy 
regards man "as capable of a continual ad- 
vance through the increasing influence of rea- 
son and sympathy/' and relies upon "the ideas 
of Justice and Right as the chief factors in the 
amelioration of society." The opposite school 
insists that social order "can be secured only 
by Force and Right itself is created only by 
force" and this school of philosophy is "asso- 
ciated with the less rational elements in man — 
with passion and the self-regarding impulses 
which naturally attain their ends by physical 
violence." 1 The analogy of industrial rela- 
tions to international relations is perfect in 
this: that whether it be the employers' group 
or the workers' group, the rights of either, like 
the rights of a nation, are presently enforceable 
only by the use of force — not organized force 
resultant from the deliberations of the com- 
munity and arrived at through juridical and 
parliamentary process, but force within the 

1 "War and Human Progress'." The Atlantic Monthly, 
September, 1916, pp. 301-2. 



66 American Labor Policy 

control of one or the other party to the contro- 
versy. The Fourth of July address of the 
President, containing a principle accepted now 
by all the international belligerents, embraced 
the following: 'The destruction of every ar- 
bitrary power anywhere that can separately, 
secretly, and of its single choice disturb the 
peace of the world ; or, if it cannot be presently 
destroyed, at the least its reduction to virtual 
impotence." And the third principle contains 
the statement : 'The consent of all nations to 
be governed in their conduct toward each other 
by the same principles of honor and of respect 
for the common law of civilized society that 
govern the individual citizens of all modern 
States in their relations with one another; to 
the end that all promises and covenants may 
be sacredly observed, no private plots or con- 
spiracies hatched, no selfish injuries wrought 
with impunity, and a mutual trust established 
upon the handsome foundation of a mutual re- 
spect for right." Change the word "nations" 
to "groups," and we have principles equally 



Hiring and Firing 67 

applicable to the industrial situation — put in 
the admirable diction of the President. 

Why must any group in the community be 
free to strike "at any time and for any or no 
reason"? The writer was present as Special 
Counsel to the Public Service Commission in 
1 91 7 when this question was publicly discussed. 
The answer was very frankly given by one of 
the leaders of labor. He said : "I want to be 
fair and I will say that I do not think it is a 
good idea to tell the other fellow what you are 
going to do, and to give them thirty days, more 
or less, to make preparation to get ready to 
fight you." * And the experienced chairman 
of a board of arbitration said: "Industrial 
war has its strategy of time and position like 
military war, and the objection of the labor 
leader to the Canadian disputes act is that it 
gives an important strategic advantage to the 
employer." 2 It is worth following his reason- 

1 Minutes of Hearing before the Commission, February 9, 
1917, p. 197. 

2 J. E. Williams, discussing Canadian Industrial Disputes Act 
— The Survey, March 31, 1917, p. 755. Mr. Williams died 



68 American Labor Policy 

ing further: "To rouse the enthusiasm of a 
large body of men to the striking point often 
requires a great deal of stimulation and effort, 
and it requires also, to be effective, that the 
accumulated dynamite be exploded at the psy- 
chological moment. If after working up the 
fighting spirit to high tension, the labor leader 
be required to keep it there during a period 
of investigation, he would find his task not only 
more difficult but in some cases impossible." 
Now, of course, military strategy is a game at 
which two can play, and advocacy of the right 
to strike at any time without notice is clear 
warning to the employer who does not want to 
deal with the union that the blow may fall at 
any moment. Preparedness, then, for such an 
employer results in the military strategy of 
keeping the union from getting a foothold. 
Detectives are employed who keep the em- 
ployer well informed when the union is gaining 

while these lines were being penned. He was one of the wisest 
conciliators of our day and generation (and his experience 
with labor leaders as well as employers justifies our confidence 
in him as it did theirs). 



Hiring and Firing 69 

ground and who are joining the union. These 
are promptly eliminated and thus is anticipated 
the adversaries' attack. The union then coun- 
ters upon the employer with charges of dis- 
crimination against the union and discharging 
men for union activity. This, as the writer 
learned from his investigations at the time, is 
the story of the street car strike of 1916. The 
union sought to get a foothold; the company 
discharged the men whom it found joining the 
union ; the union struck to reinstate these men. 
The strike spread until it came near involving 
the entire city in a general strike. But in the 
ultimate outcome the company justified itself 
by the insistence upon the part of union leaders 
of absolute freedom to apply military strategy 
to the situation. Our analogy, therefore, is 
complete. We are dealing with a situation as 
ready for war as was the European situation 
prior to August 4th, 1914. The President * 
clearly foresees the conditions which must be 
brought about if a like international crisis is 

1 Address to the Senate, January 22, 1917. 



JO American Labor Policy 

not again to be repeated. "Mere terms of 
peace between the belligerents will not satisfy 
even the belligerents themselves. Mere agree- 
ments may not make peace secure. It will be 
absolutely necessary that a force be created as 
a guarantor of the permanency of the settle- 
ment, so much greater than the force of any 
nation now engaged or any alliance hitherto 
formed or projected, that no nation, no prob- 
able combination of nations, could face or with- 
stand it. If the peace presently to be made 
is to endure, it must be a peace made secure 
by the organized major force of mankind." 
This is the hope, the inspiring hope of the peo- 
ples of the world — international law not rest- 
ing upon mere agreement or understanding, 
but backed by an organized force supported 
by the common sense of mankind. How this 
force shall be applied — whether economic or 
military — is the question of the hour. 

Coming back to the subject of freedom of 
industrial contract, we discern certain legal 
corollaries. For example, the attempt of em- 



Hiring and Firing 71 

ployers to counter military strategy against 
military strategy is found in the discharge of 
men belonging to the union. The union's 
counter-attack lies in securing legislation pre- 
cluding discharge of an employee because of 
membership in a labor organization. But the 
legal right to leave employment at any moment 
and for any or no reason rests, as every lawyer 
knows, upon the relationship "at will" of the 
hiring. And since the employee is free to go 
at any time he pleases, either singly or en 
masse, the United States Supreme Court finds 
it impossible to accept the doctrine that the 
legislature may constitutionally prevent the 
employer from discharging a man because he 
joins a union. Says Judge Harlan in the 
Adair case : * "The right of a person to sell 
his labor upon such terms as he deems proper 
is, in its essence, the same as the right of the 
purchaser of labor to prescribe the conditions 
upon which he will accept such labor from the 
person offering to sell it. So the right of the 

1 208 U. S. 161. 



J2 American Labor Policy 

employee to quit the service of the employer, 
for whatever reason, is the same as the right of 
the employer, for whatever reason, to dispense 
with the services of such employee. It was the 
legal right of the defendant, Adair, — however 
unwise such a course might have been, — to 
discharge Coppage [the employee in the case] 
because of his being a member of a labor or- 
ganization, as it was the legal right of Coppage, 
if he saw fit to do so, — however unwise such a 
course on his part might have been, — to quit 
the service in which he was engaged, because 
the defendant employed some persons who 
were not members of a labor organization. In 
all such particulars the employer and the em- 
ployee have equality of right, and any legis- 
lation that disturbs that equality is an arbitrary 
interference with the liberty of contract which 
no government can legally justify in a free 
land." * And in support of his contention be- 
fore the Public Service Commission that the 
free right to quit work over against the free 

1 Pp. 174-175*. Italics ours. 



Hiring and Firing 73 

right to discharge secures justice for the 
worker, Mr. Gompers said: "I shall not ex- 
press dissent from that conception of right 
[Judge Harlan's], but willing to concede that 
right to employers, I insist upon the right of 
workers to leave their employment at will, for 
any good reason, or for no reason at all." 1 
But in the Adair case Mr. Justice Harlan said : 
"Of course, if the parties by contract fixed the 
period of service, and prescribed the conditions 
upon which the contract may be terminated, 
such contract would control the rights of the 
parties as between themselves, and for any vio- 
lation of those provisions the party wronged 
would have his appropriate civil action." 2 It 
would seem, therefore, to be unquestionably 
sound — applying the international analogy fur- 
ther — that the present legal status must be 
changed, that each group must give up some- 
thing of its unrestrained right to wield power 
and that there must be a "reign of law, based 

1 Minutes of Hearing before the Commission, February 7, 
1917, p. 70. 

2 208 U. S. 161, at p. 175. 



74 American Labor Policy 

upon the consent of the governed and sustained 
by the organized opinion of mankind." In the 
emergence of the new legal conception, there- 
fore, the first step must be taken in the direc- 
tion of modifying the tenure of employment. 
The uncertainty and danger of discharge must 
be removed, the employee must be satisfied that 
he will get a fair hearing and redress for his 
legitimate grievances. This is vital to the 
three parties, the employee, the employer and 
the community. As we have seen, it affects 
the public service, the public health, the public 
order. The present situation results in vio- 
lence, in economic waste, and in the destruction 
of industrial morale. It must be changed. 
How shall it be changed ? 

INDIVIDUAL AND COLLECTIVE BARGAINING 

The Whitley Plan 1 is based fundamentally 
upon the principle of collective bargaining; 

1 Report of the Right Honorable J. H. Whitley, M.P., Chair- 
man of the Sub-Committee on Relations between Employers 
and Employed of the Commission on Industrial Unrest. In- 
terim Report. London, 1917. 



Individual and Collective Bargaining J$ 

that each trade should have a constitution, that 
all of the employers should be organized in one 
organization and all of the employees organ- 
ized in another, and that all of the industrial 
organizations should finally be represented in a 
national industrial council representative of the 
trades unions and of the employers' associa- 
tions in the industry. Without recognizing 
the union and dealing with the union, this kind 
of an organization of industry is impossible. 
The National War Labor Board (United 
States) adopted as one of the principles and 
policies governing relations between workers 
and employers in war industries for the dura- 
tion of the war the following: "The right of 
workers to organize in trade-unions and to bar- 
gain collectively through chosen representatives 
is recognized and affirmed. This right shall 
not be denied, abridged, or interfered with by 
the employers in any manner whatsoever." 
And, contrary to the decision of the United 
States Supreme Court in the Adair and Cop- 
page case, it said that "Employers should not 



y6 American Labor Policy 

discharge workers for membership in trade- 
unions, nor for legitimate trade-union activi- 
ties." As principles, these two statements are 
as sound as the principle that international 
treaties shall be observed. Yet Belgium was 
invaded, and the world went to war to establish 
the sanctity of international treaties. Is it 
necessary to go to war to establish the sanctity 
of industrial principles ? If the right to strike 
at any time for any or no reason whatever is 
to be maintained because of its value in the 
philosophy of military strategy, may not em- 
ployers very properly ask: "Isn't this a game 
of 'heads you win and tails we lose'?" And 
again, may they not ask: "If we guarantee 
permanence of employment and continuity of 
the job, how shall we be assured that the con- 
tract not to strike will be observed?" 

Any one at all familiar with the root causes 
of industrial conflict, any one who is as close to 
the point of friction as the student of the Bal- 
kans was to the point of friction in the inter- 
national situation, will admit that herein lies 



Individual and Collective Bargaining 77 

the epidemic germ of industrial war, that it 
must be isolated and microscopically examined 
in order that its malignant properties may be 
offset with some new virus of anti-toxic value. 
Isolating the germ, then, w r hat do we discern? 
First of all, that the individual contract be- 
tween employer and employee protects neither 
and results in industrial war sooner or later. 
It creates the pathological condition of im- 
permanency of employment. When the labor 
supply is over much, the balance of power 
swings to the employer. When there is a 
shortage of labor, the balance of power swings 
to the employee. When the first condition ex- 
ists, we have all the elements that make for an 
imperial employer's autocracy. When the sec- 
ond condition exists, we have all of the ele- 
ments that go to make for an imperial work- 
er's autocracy. 1 The Russian experience has 

1 The effect of transference of power from the employers' 
group to the employees' group upon attempts at "mutual gov- 
ernment" of industry and the effect of a like transference of 
power back again from the employees' group to the employers' 
group is disclosed in a very excellent study of "Collective Bar- 
gaining in the Lithographic Industry" by H. E. Hoagland. 



yS American Labor Policy 

already taught us that the transference of un- 
restrained imperial power from the monarch 
to the proletariat makes for just as much vio- 
lation of human liberty and freedom as if the 
power resides in a czar or kaiser. Lenine and 
Trotzky are imperialistic anti-social bodies, 
whether covered with the jewels of the Prus- 
sian crown, or wearing only tatters and rags. 
Still both employer and employee ask: 
"How else can we be safeguarded?" and we 
must pay just as much respect to this legitimate 
question as we pay to England's insistence that 
she remain the paramount naval pow r er of the 
world. Taking up first the employer's side, it 
may be taken for granted that the existence of 
a strong employers' association of which he is 
a member will make for a guarantee to the 
workers of the performance of any collective 
agreement into which he or his association 
may enter. Obviously, on the other hand an 
individual contract with an employee, even for 

(Columbia University Studies in Political Science, Vol. 
LXXIV, No. 3.) 



Individual and Collective Bargaining 79 

a definite term or period, insures no guarantee 
of its performance upon the part of the worker. 
He has none of the financial responsibility of 
his employer, and if he wanders off there is no 
way of collecting damages. Moreover, by 
what process can you make him sing who does 
not wish to sing? Or make him drink who 
does not wish to drink? Or make him work 
who does not wish to work? Herein, for the 
employer, lies the value of collective bargain- 
ing. The organized trades union is the collec- 
tive sentiment of the working community, 
which can be welded into an effective guaran- 
tee of the faithful performance of obligations. 
The experience of Great Britain has been re- 
peatedly reviewed. In the report of the Brit- 
ish Industrial Council on its "Enquiry into 
Industrial Agreements" in 1913, the Council 
said: "The desirability of maintaining the 
principle of collective bargaining — which has 
become so important a constituent in the indus- 
trial life of this country — cannot be called into 
question, and we regard it as axiomatic that 



80 American Labor Policy 

nothing should be done that would lead to the 
abandonment of a method of adjusting the re- 
lationships between employers and workpeo- 
ple which has proved so mutually advantageous 
throughout most of the trades of the country. ,y 
In the introduction of Sir George Askwith to 
the "Report on Collective Agreements between 
Employers and Workpeople in the United 
Kingdom" made in 1910, he said: "The wide 
prevalence of these arrangements in our most 
important industries must have an important 
influence on industrial enterprise, for when 
the level of wages, the length of the working 
day, and other principal conditions of employ- 
ment are regulated, for specified periods of 
greater or less duration, by clearly defined 
Agreements, the employers concerned must be 
enabled to calculate with precision that part of 
the cost of production which will be repre- 
sented by labour ; further, when these Agree- 
ments bind the whole or a very large propor- 
tion of the firms engaged in a given trade, the 
danger of undercutting by rivals who find it 



Individual and Collective Bargaining 81 

possible to obtain labour at a lower price is ma- 
terially reduced/' And in the more recent re- 
port of the Commission of Inquiry into Indus- 
trial Unrest, 1 they say: "The best security 
for industrial peace is organization of both 
employers and employed. If the men are 
badly organized the result is unauthorized local 
strikes; if the employers are not strongly fed- 
erated, you have a minority who refuse to pay 
the district rate/' And in the report of Presi- 
dent Wilson's Mediation Commission, the sec- 
ond principle stated is: Some form of col- 
lective relationship between management and 
men is indispensable. 2 The common ground 
for a meeting of minds, therefore, is collective 
bargaining. Here military strategy may be 
given up in exchange for treaty obligations. 
Change of tenure of employment, qualification 
of the right to strike and qualification of the 
right to discharge — the result and outcome of 
a free, open, democratic meeting of minds. 

1 Bulletin of the U. S. Bureau of Labor Statistics No. 237, 
p. 100. 

2 See New York Evening Post, February 11, 1918. 



82 American Labor Policy 

Shall we give to this process of group contract- 
ing the same cordial support which the com- 
mon law now extends to individual contract- 
ing? Marked differences exist between the 
English trade union situation and that of our 
own country. 1 First of all, British labor has 
a long political history. Since the sixties of 
the last century it has maintained special in- 
tellectual affiliations with the non-manual 
workers. Labor is far less highly organized in 
America and "Industrial capital is far more 
highly organized and far more hostile to labor 
than it is in England." 2 Why is organized 
American capital opposed to organized Ameri- 
can labor ? The answer is that both sides are 
still in the stage of military strategy, and both 
sides must be won over to the stage of indus- 
trial law. They will not be won over any more 
quickly than the nations of the world will be 
won over to a League of Nations unless their 

1 See address of Harold J. Laski on War Labor Policies and 
Reconstruction, session of the Academy of Political Science, 
December, 1918. 

2 Report of Harold J. Laski's address in New York Journal 
of Commerce, December 10, 1918. 



Individual and Collective Bargaining 83 

assent is obtained to a constructive program in 
which they are secured. The nations of the 
world could not have been won over to such a 
constructive program before the great world 
war. The world was not yet ready. It is the 
bitter lessons of the war which made a general 
public sentiment demanding that international 
war be subordinated to international law. 
Must we go through the same painful experi- 
ences before we can secure that combination of, 
feeling and judgment which is prerequisite to 
the establishment of industrial law? Perhaps 
the analogy of the international situation will 
help us further. We had all assumed that the 
making of a collective bargain between Ger- 
many and Belgium was enough. It would be 
preserved through the force of its own inherent 
moral soundness and an enlightened interna- 
tional public opinion. How futile that phi- 
losophy was we now know. In like fashion 
some experience with collective bargaining 
under the administration of the War Labor 
Board teaches us the same lesson. We have 



84 American Labor Policy 

had the recent decrees of the War Labor Board 
flouted on both sides, and only the organized 
power of the community vested in the Presi- 
dent under law enabled him to exercise the 
war power, in the one instance (the Smith & 
Wesson plant) by taking over the plant and 
operating it as a governmental agency, and in 
the other (the Bridgeport munition w r orkers) 
by informing the men that if they refused to 
abide by the award of the National War Labor 
Board and did not return to work, they would 
"be barred from employment in any war indus- 
try in the community in which the strike occurs 
for a period of one year" and furthermore that 
during that time the United States Employ- 
ment Service would decline to obtain employ- 
ment for them in any war industry elsewhere 
in the United States, as well as under the War 
and Navy Departments, the Shipping Board, 
the Railroad Administration, and all other 
government agencies, and "the draft boards 
will be instructed to reject any claim of exemp- 
tion based on your alleged usefulness on war 



Individual and Collective Bargaining 85 

production." l Similarly, Dr. William Z. Rip- 
ley in the case of Rosenwasser Brothers found 
the facts to be these : An agreement had been 
reached by the workers' representatives for 
navy shoes. The vampers for some reason re- 
pudiated the agreement and walked out. The 
representative of the National War Labor 
Board said: "By this action they have for- 
feited their positions, not only in this factory 
but are liable to be excluded from Government 
employment during the rest of the war. The 
Administration of Labor Standards stands for 
fair dealing and a full recognition of the work- 
ers' rights, but it likewise insists upon effi- 
ciency, discipline and good faith. This strike 
was a breach of the Government's War Policy 
and also of straightforward business dealing 
between capital and labor. It will not be toler- 
ated so far as any penalty which this office can 
impose is concerned." These experiences are 
in accord with the writer's experience in the 

1 Monthly Labor Review, Bureau of Labor Statistics, U. S. 
Dept. of Labor, October, 1918, Vol. VII, No. 4, "Awards and 
Decisions of the National War Labor Board." 



86 American Labor Policy 

street car strike of 1916 and the Protocol ex- 
periences in the garment industries. 1 After 
the Public Service Commission and the Mayor 
had settled the street car strike upon terms sat- 
isfactory to both parties, recognizing clearly 
the right of men to belong to a union, on both 
sides the agreement was broken 2 and the Pub- 
lic Service Commission and the Mayor, who 
had given their guarantee that the agreement 
would be enforced, found themselves without 
legal power to do anything. It became per- 
fectly clear that the absence of legal power to 
enforce the observance of agreements has pre- 
cisely the same result in industrial relations as 
it has in international treaties. If the philoso- 
phy of force be actuating either of the contend- 
ing parties, or, for that matter, be actuating 
both of them, military strategy will lead to 
the striking of the first blow when the adver- 
sary is not looking for it. 

As in international relations so in industrial 

1 See "Law and Order in Industry/' 

2 This does not include the Third Avenue Railway Company. 



Individual and Collective Bargaining 87 

relations we have heretofore depended upon 
the parties to the treaty to see to its enforce- 
ment and, therefore, to the extent that the par- 
ties were militarily prepared, treaties were or 
were not enforceable. The strike, the lockout 
and discharge are the army and navy of the 
contracting powers — the sole means now avail- 
able to secure observance of obligations. This 
is the lesson of the street car strike, of the gar- 
ment industry, of many others. 1 

Until we put the parties upon a firmer basis, 
we might just as well ask England to give up 
her naval fleet as ask the trades unions to give 
up their right to strike. And with equal truth, 
we might as well ask employers to give up their 
right to prepare to meet the forces they regard 
as their foes. (If you can't meet the navy 
upon terms of equality, you can use the sub- 
marine, can't you?) So long as the game is 
one of military strategy, you must keep your 
powder dry and watch your own and the 

1 See "Collective Bargaining in the Lithographic Industry," 
by H. E. Hoagland. Columbia University Studies in Political 
Science, Vol. LXXIV, No. 3. 



88 American Labor Policy 

enemy's alignment. That is why the safety of 
the entire industrial structure rests to-day, as 
did the world's peace, upon the "balance of 
power." In the industrial situation, however, 
the "balance of power" is shifting uneasily to 
the greater majority — a majority but recently 
graduated from a special and highly dramatic 
course in democracy. 

But, no league of nations in existence, what 
other way was there of redressing the wrong 
to Belgium except to go to war? In the day 
of individual retributive justice, when the pio- 
neer had to meet the savage's knife, the repres- 
sive action required to secure the preservation 
of liberty came not from the community, but 
from a part of it, — the individual-about-to-be- 
injured. He himself was the administrator of 
justice. He personally enforced a decent re- 
spect for human life. He was judge, jury and 
sheriff, all in one. Justice upon the minute as 
and when necessary was meted out by him. 
There was none of the law's delays. He was 
the law. In the next state of civilization, when 



Individual and Collective Bargaining 89 

it was no longer protection of the civilized man 
from the savage but protection of the civilized 
man from his brother, justice was adminis- 
tered upon the plane of the duel. Celerity of 
aim and swiftness of arm constituted the jurid- 
ical test. Later, in the day of the Western 
frontier, we have the community organizing 
spasmodically to repress violence. It is the 
mass effort to repress savage instincts. So 
with nations. The predatory nation attempts 
to take its neighbor's territory but meets with 
the same defense as the pioneer set up against 
the savage. Human rights are upheld by the 
about-to-be-injured nation, as judge, jury and 
sheriff all in one. Sometimes, as in the case of 
Belgium and Northern France, the predatory 
savage is too swift or the attacked innocent too 
unprepared. For the time being justice fails 
and human rights are outraged. But the 
moral sense of a larger community is outraged. 
The very success of the predatory nation 
arouses something fine and big in others and 
there comes a new repressive force. A moral 



go American Labor Policy 

basis is formed upon which the Allies, organ- 
izing under many flags, but with a single pur- 
pose, the securing of justice and the enforce- 
ment of international law, — repress the in- 
vader of territory and the destroyer of human 
rights and thereby lay the foundation for 
better administration of international law. 
Nevertheless, until some kind of international 
organization based upon international law is 
brought into existence, we are still left upon 
the plane of the duel. 

In like fashion the invasion of human rights 
through autocratic exercise of industrial au- 
thority results in the organization of some kind 
of repressive force. The laborers form 
unions. These fight for their lives. They 
fight for the right to organize. They fight 
for better working conditions. They repre- 
sent for the time being the best kind of an or- 
ganization then possible of formation for the 
improvement of the conditions of working peo- 
ple. They become a kind of vigilance commit- 
tee for the repression of outrages upon any of 



Individual and Collective Bargaining 91 

their members. They fight because they must 
fight. And when, through success of conflict, 
they attain power, the remainder of the com- 
munity once again runs the risk of power un- 
restrained by law. It is most fortunate for 
this country that at the moment the present 
leaders of organized labor instinctively recog- 
nize the limits to which they should use their 
power. By the exercise of sheer personal re- 
straint, they have applied in large measure the 
repression the community itself must sooner or 
later inevitably apply. But in instances where 
the mass power has passed into the hands of 
men who believe w T ith Sorel and Trotzky and 
Lenine, success merely whets the appetite for 
greater power. Collective bargaining with 
organizations led by men who believe in the 
ultimate overthrow of all industry and the 
passing of power to the proletariat is in effect 
pacifism dealing with autocracy, delaying 
rather than disposing of the conflict that must 
inevitably come. From our experiences in the 
administration of the National War Labor 



92 American Labor Policy 

Board, we learn that even at a time when the 
strongest appeal to patriotism can be made, 
there must be back of the agreement, back of 
the law, a power to enforce the law. 

Here again we find instructive analogy in 
the evolution of legal procedure. In the early- 
days of Anglo-Saxon justice, there was no 
executive power to enforce the law. What 
seems to us to be so ordinary and so simple in 
the administration of law to-day was then en- 
tirely lacking. To-day the courts compel the 
attendance of parties ; they enforce their judg- 
ments, their interlocutory orders. All these 
things are done under the ordinary authority 
of the court, as matter of course. Open re- 
sistance to judicial orders is so plainly useless 
that it is very rarely attempted, and any one 
who prefers penalties to submission is regarded 
as indicating eccentricity almost amounting to 
unsoundness of mind. 1 Says Sir Frederick 
Pollock: "But this reign of law did not come 

1 Sir Frederick Pollock : "Expansion of the Common Law," 
pp. 145-6. 



Individual and Collective Bargaining 93 

by nature; it has been slowly and laboriously 
won/' The original jurisdiction was purely 
voluntary, derived not from the authority of 
the state, but "f rom the consent of the parties." 
It was like our present day collective bargain- 
ing — good as far as it went. "People might 
come to the court/' says Sir Frederick Pollock, 
"f or a decision if they agreed to do so." They 
were, of course, in honor bound to accept the 
result. They might forfeit the pledges which 
they deposited with the court, but there was 
no power to compel their obedience any more 
than there is to-day any power to compel obedi- 
ence to the decrees of a tribunal of arbitration 
appointed under a treaty. In more recent 
times, we see the Central American Court of 
Justice, — an international tribunal, — going to 
pieces because it lacks method for the enforce- 
ment of its decrees. By Article XXV of the 
treaty between the Central American republics 
it was provided: "The judgments of the 
Court shall be communicated to the five Gov- 
ernments of the contracting Republics. The 



94 American Labor Policy 

interested parties solemnly bind themselves to 
submit to said judgments, and all agree to lend 
all moral support that may be necessary in 
order that they may be properly fulfilled, 
thereby constituting a real and positive guar- 
antee of respect for this Convention and for 
the Central American Court of Justice." This 
guarantee turned out to be just as good and no 
better than the guarantee of the Public Serv- 
ice Commission and the Mayor of the City of 
New York of the observance of the treaty of 
peace that settled the first street car strike in 
1 916. On March 17th, 191 8, the Central 
American Court ceased to exist, because its de- 
crees were unenforceable. 1 Let us hope the 

1 Wicker, Cyrus F. : "Nicaragua and the United States," 
Atlantic Monthly, Vol. 119, 1917, pp. 682-685. 

"The Central American Peace Conference. 1907. Treaties." 
(In American Journal of International Law, Vol. 2, Supple- 
ment, pp. 219-265.) 

"Central American Court of Justice. Regulations and Or- 
dinance of Procedure." (In Same, Vol. 8, Supplement, pp. 
179-213.) 

"Bryan-Chamorro Treaty." (In Same, Vol. 10, Supplement, 
pp. 258-260.) 

"Central American Court of Justice. Note addressed to the 
governments of Costa Rica, El Salvador, Honduras and 



Individual and Collective Bargaining 95 

Council of Peace at Versailles will do better. 
In the early days of Anglo-Saxon administra- 
tion 1 the only way by which you could bring an 
unwilling adversary into court was to take as 
security something belonging to him and hold 
it until he would attend to the demand. Prac- 
tically the only things that could thus be taken 
without personal violence were cattle. Thus 
arose the process of distress. It was forbid- 
den to distrain until right had been formally 
demanded — in Cnut's time to the extent of 
three summonings — and refused. Thus grad- 
ually judicial supervision of the process was 
secured. Nevertheless, if taking a man's cat- 
tle failed to make him appear in court, the only 
resource left "was to deny the law's protection 
to the stiff-necked man who would not come to 
be judged by law." He might be outlawed. 
This was enough to coerce most men who had 

Guatemala" (respecting the refusal of Nicaragua to abide by 
the decision in the case of Costa Rica). (In Same, Vol. 11, 
Supplement, pp. S-^-) 

1 Sir Frederick Pollock : "Expansion of the Common Law," 
pp. 145-6. 



96 American Labor Policy 

anything to lose and were not strong enough 
to live in rebellion. Nevertheless, in this stage 
of the development of the law, no right could 
be done to the complainant without the volun- 
tary submission of the defendant. "The de- 
vice of a judgment by default/' says Pollock, 
"which is familiar enough to us, was unknown, 
and probably would not have been understood." 
Even after you got your final judgment you 
could not enforce it by legal process. "The 
successful party had to see to gathering the 
'fruits of judgment/ as we say, for himself. 
In case of continued refusal to do right accord- 
ing to the sentence of the court, he might take 
the law into his own hands, in fact wage war 
on his obstinate opponent." So in present day 
industrial situations we leave the parties them- 
selves to enforce the agreement; they take the 
law into their own hands. If either breaks the 
agreement the other is obliged to wage war to 
secure its enforcement. If two sides break the 
agreement, as the writer saw them do in the 
street car strike of 19 16, we have a bitter duel, 



What Is the Next Step? 97 

the whole controversy is put upon the plane of 
military strategy and the community stands by 
helpless. 

Not merely a change in the state of conti- 
nuity of employment, therefore, not merely a 
change of the hiring at will, not merely recog- 
nition of the union, nor collective bargaining, 
nor strengthening the power of organized 
labor or of organized employers, but something 
more is required. 

WHAT IS THE NEXT STEP? 

The next step, of course, must be one that 
will secure the assent of all three parties — the 
Employers' Group, the Workers' Group and 
the Public. The great war is over. The job 
of industrial control can be carried on no longer 
by the War Labor Board, backed, as it was, by 
the tremendous war powers of the President. 1 
We are back again to the stage where both par- 

1 Already the jurisdiction of this Board is challenged. See 
New York press, December 31, 1918, refusal of street railway 
companies to submit to War Labor Board. 



98 American Labor Policy 

ties "come into court" only of their own choice. 
Nor are we likely soon to get legislation that 
will furnish anything of the effectiveness of 
existing legal process. Confidence upon the 
part of the great masses of men in judicial ma- 
chinery and in the personnel of our judiciary is 
not now great enough to secure their free as- 
sent to the submission of controversies to exist- 
ing tribunals. Nor shall we find American 
employers eager to embrace organized labor or 
ready to sign collective agreements en masse. 
Is there, then, no way out? Must we go 
through a terrible industrial war before both 
sides, worn out, suffering the ravages and pain 
of a struggle that if it comes, is certainly des- 
tined to be violent, shall sit down at a council 
table to formulate their fourteen points? If 
we could be confident that men were guided by 
their reason and not by their emotions, we 
might look out hopefully upon the future of 
this industrial problem. There is a way out, 
if experience can be made to count. 

Labor must be organized and must be per- 



What Is the Next Step? 99 

mitted to join in the management of industry. 

Employers must be organized. 

The determination of the standards and 
working conditions of each industry must come 
about, if not through war, then through the 
action of groups of employers and workers 
legislating for their industries in common and 
free parliamentary action. 

There must be opportunity and full oppor- 
tunity for the redress of all grievances. 

There must be machinery that will secure to 
the worker a reasonable tenure of employment. 

Two things also must be expressed in such 
a compact — a limitation of the free right to 
discharge and a limitation of the free right to 
strike. By the process of free negotiation, 
these two rights in the past have been balanced. 
It can be done again. But collective bargain- 
ing between two powers is like treaty making 
between warring nations. There must be es- 
tablished, as the President said there must be 
established in international relations, "an or- 
ganization of peace which shall make it certain 



ioo American Labor Policy 

that the combined power of [a] free [nations] 
[people] will check every invasion of right and 
serve to make peace and justice the more se- 
cure by affording a definite tribunal of opin- 
ion to which all must submit and by which 
every international readjustment that cannot 
be amicably agreed upon by the peoples di- 
rectly concerned shall be sanctioned/' Or, put 
in his single sentence: "What we seek is the 
reign of law, based upon the consent of the 
governed and sustained by the organized opin- 
ion of mankind." 

Here we must pause to consider a very im- 
portant factor. If we turn back a few pages 
we shall be reminded that bargains or con- 
tracts with groups of the Sorel-Lenine-Trotzky 
variety are not undertakings in free govern- 
ment, but are means, instead, for extending 
and augmenting the power of a group deter- 
mined to reign over all — in brief, the contract 
is a mere stepping-stone to imperial power. 
Why, then, says Mr. Employer, shall I, though 
still in my senses, feed the tiger who is ready 



What Is the Next Step? 101 

to destroy me ? Moreover, since the union you 
ask me to deal with is an unknown quantity, 
how do I know which I shall find when I open 
the door ? Is it to be the Lady or the Tiger ? 

These are the questions which Mr. Rocke- 
feller's creed does not answer, at least, not di- 
rectly, but they are the questions asked by em- 
ployers all over the country and upon the an- 
swer to them depends American hearty acqui- 
escence in the British policy of encouragement 
of collective bargaining. If, therefore, collec- 
tive bargaining is to be the basis of industrial 
reorganization, and if we are not ready, with- 
out safeguards, to adopt it in this country, how 
shall we proceed ? 

The policy and program of the Sorel-Lenine- 
Trotzky group is destructive of all ownership 
— even the pianos, the pictures and the clocks 
of the workman are not safe. Any one who 
saves enough to buy a Liberty Bond becomes 
thereby a member of the bourgeoisie. And 
the worker in the shipyards who bought a bi- 
cycle or a Ford or a little home for himself and 



102 American Labor Policy 

his family is worse than a bourgeois — he is a 
plutocrat. Of course, ultimately, there is no 
place in the American sun for such a philoso- 
phy. It cannot survive. But it can be made 
to thrive if we fail to discriminate between the 
proper use of collective power and the im- 
proper use of it. England, France and the 
United States had to meet this situation during 
the war. The Sorel-Lenine-Trotzky groups 
were all against the war. Every chance they 
got they threw monkey wrenches into the war 
machinery. But they failed. Why? The 
liberal statesmen in power in all three countries 
frankly and openly joined hands with organ- 
ized labor. In this country, it is said in jest, 
but not wholly without truth, that it was not 
the President's Texan friend, the Colonel, but 
Mr. Gompers who constituted the Third House 
at Washington. And Mr. Gompers, let it be 
said to his credit, delivered the goods. With- 
out the hearty cooperation of the American 
Federation of Labor, the productive machinery 
of the nation could not have been kept in con- 



What Is the Next Step? 103 

stant motion. Literally the goods would not 
have been delivered. The intelligent workmen 
of the country can be made conscious of the 
new imperialistic danger organizing under red 
banners — dangerous to them as well as to em- 
ployers. Unity can be had, upon the basis of 
recognizing clearly the right of men to organ- 
ize collectively and responsibly. The solution 
is to be found in a process that will enable the 
organization to thrive that should thrive and 
the organization to be repressed which should 
be repressed. To devise this process — chang- 
ing the figure — is to find the anti-toxic serum. 
The organized community has the power to 
regulate all private organization; it can re- 
quire corporations to secure a license to do 
business ; it can require co-partnerships to reg- 
ister. Not the full and complete exercise of 
this power to regulate corporation and associa- 
tion existence, but a very limited use of it will 
suffice. Let collective agreements be made 
freely by all trade bodies, employers and em- 
ployees. But let them be registered with a 



104 American Labor Policy 

National Labor Board (or Industrial Council) 
made up of men acceptable to organized em- 
ployers and organized labor. // approved by 
the Board, let them have the validity of legal, 
binding obligations, with power of enforce- 
ment and relief to either party when injured 
vested somewhere, if not in the courts, then 
in some new tribunal created for the purpose. 
Let the organized community, thus acting 
through agencies of free selection — working 
democratically, if you please, put its stamp of 
approval upon collective bargaining where it 
is in the interest of the community and its 
stamp of disapproval where it is against the 
interest of the community. This process will 
bring into sharp public outline the nature of 
the organization. Does it observe its obliga- 
tions? Is it striving for imperial power to 
overturn government ? Or is it honestly seek- 
ing to improve the working conditions of men, 
seeking by juridical and parliamentary process 
to bring about a better industrial condition? 
If it proves that it merits confidence, it will 



What Is the Next Step? 105 

grow stronger. If it proves to be an anti- 
social body, it will meet the repressive power 
of the organized community, operating through 
agents selected by workers and employers. 

This means a frank, open, immediate align- 
ment with the American Federation of Labor 
and in these days of "open diplomacy" the 
terms may be stated publicly. 

The employers of the country to organize in 
all industries. The employees freely to organ- 
ize in all industries. Constitutions for all in- 
dustries to be worked out through collective 
agreements, but these agreements to be sub- 
ject for validity and enforcement, not to the 
caprice or whim or moral trustworthiness of 
the parties, but subject always to the super- 
vision of a National Labor Board, or Indus- 
trial Council, so constituted as to avoid all 
inference that either group dominates its de- 
terminations. A definite, clear understanding 
upon the part of organized labor and organized 
employers that their energies shall henceforth 
be devoted not to warring against each other, 



106 American Labor Policy 

but as contributing forces in a democratic so- 
ciety, combining their energies and devoting 
them toward a constantly broadening improve- 
ment of the productive morale of the country 
and a fairer distribution of the product. This, 
we have seen, includes practically the substance 
of the entire program of the liberals in all 
groups — better working, better housing, better 
living conditions, for the workers, of brain as 
well as of brawn, to the end that there shall be 
a better life for all those who labor. This, 
then, is the democratic law and order — para- 
phrasing the President — the establishment of 
an organization of peace which shall make it 
certain that the combined power of the entire 
community will check every invasion of right 
and serve to make peace and justice the more 
secure by affording a definite tribunal of opin- 
ion to which all must submit and by which 
every industrial readjustment that cannot be 
amicably agreed upon by the peoples directly 
concerned shall be sanctioned. If we leave 
to contending parties the making of the con- 



What Is the Next Step? 107 

tract, but insist that after it is made it shall be 
observed, we shall be doing justice to both. 
The employer who violates the contract can be 
subjected to the power of the community; the 
individual worker who, or the organization of 
workers which violates the agreement can like- 
wise be subjected to the power of the com- 
munity. That branch of organized labor 
which does not believe in the overthrow of so- 
ciety, but believes in the steady and orderly 
improvement of the conditions of labor, can 
join hands with organized capital. This is a 
platform upon which both can stand together. 
That platform contains these planks : 

1. Agreements voluntarily come to between 
organizations of employers and organizations 
of workpeople shall be validated by law and 
shall receive support in their enforcement from 
all the legal agencies of Government. 

2. Machinery shall be set up by which either 
party may secure redress in the enforcement of 
such agreements. 

3. Free opportunity shall be accorded or- 



108 American Labor Policy 

ganized labor and organized capital to come 
to such agreements, and they shall be encour- 
aged in the process by the knowledge that such 
agreements, when made, will be legally en- 
forceable, and if not made the arbitrary party 
will be rigorously dealt with by the community. 

4. Those who break their contracts will be 
as those who break their treaties — the enemies 
of organized society to be dealt with through 
the combined power of the nation. 

5. Thus only can we destroy arbitrary 
power anywhere capable "separately, secretly, 
and of its single choice" to disturb the indus- 
trial peace. Thus shall we afford opportunity 
for the gradual ending of industrial clashes. 

Upon such a platform Mr. Gompers could 
assure the leaders of labor union opinion that 
the power of organized labor would be in- 
creased; that its members would become legion; 
that instead of representing but a small per- 
centage of the labor of the country, it would 
represent substantially the larger percentage 
of the whole. Mr. Rockefeller could assure 



What Is the Next Step? 109 

the employers of the country that the provi- 
sions of the collective agreements into which 
they would enter had some reasonable expec- 
tation of enforcement, and that in the recog- 
nition of the union they would secure the surest 
guarantee of the observance of standards 
throughout their industries. 

Standing upon such a platform, both Mr. 
Gompers and Mr. Rockefeller could assure the 
community that through a combined program, 
the right to review unjust exercise of power 
either in the hands of the employer or in the 
hands of the worker, there would come about 
a reorganization of the productive morale of 
the country and the energy now expended in 
efforts to secure advantage of position or 
power could be turned jointly to increasing 
production and bettering distribution. 

Freedom to organize, freedom to deal col- 
lectively, security from arbitrary discharge, se- 
curity against strikes, resulting from the free 
interchange of opinions, but, when made, the 
compact subject to the approval of the com- 



no American Labor Policy 

munity and, after approval, enforceable by the 
community — these would seem to constitute the 
basic elements of a new democratic law and 
order. To accomplish it we shall need to re- 
vise our legal conceptions of freedom of con- 
tract. 



THE END 



PRINTED IN THE UNITED STATES OF AMERICA 



THE following pages contain advertisements 
of a few of the Macmillan books on kin- 
dred subjects. 



BY THE SAME AUTHOR 

Law and Order in Industry 

By JULIUS HENRY COHEN 

Cloth, i2tno, $1.50 

A lawyer who knows the facts of the case from inti- 
mate knowledge gives in this book a comprehensive 
story of the " Protocol " experiences in the cloak and 
suit industry of New York. He describes vividly the 
processes and results of collective dealing between a 
trades union and an employers' association covering a 
period of five years. The solution of the apparently 
baffling problems furnishes lessons of great immediate 
and future import to all employers of labor, trades 
unionists, social reformers and students of political 
science and economics. 

" The book is a distinct contribution to the science of 
social relations and as such should have a wide reading 
both here and abroad." — The Independent. 

" His book is a sound and reliable study of a small, 
but significant, phase of a world-wide movement." 

— Boston Daily Advertiser. 



THE MACMILLAN COMPANY 

Publishers 64-66 Fifth Avenue New York 



A NEW IDEA IN INDUSTRY 

The Shop Committee 

A HAND-BOOK FOR EMPLOYERS AND EMPLOYEES 
By WILLIAM LEAVITT STODDARD, A.B., A.M., 

Harvard 

Administrator for the National War Labor Board, 

1918-1919 

Cloth, i2tno, $1.25 
The Shop Committee is a new thing in industry. Here is 
a clear statement of the essential principles and facts of the 
Shop Committee System, what it is and how it works. Every 
large employer will be vitally interested in this new indus- 
trial movement, described for the first time in Mr. Stod- 
dard's book. 

Table of Contents 
chapter 

I — The Early Beginnings: History of the shop committee 
movement in this country and Great Britain with par- 
ticular reference to the developments since the war 
and shop committees as a reconstruction measure. 
II — The War Labor Board Plan : Development of shop 
committees by the National War Labor Board, de- 
scribing particularly the Pittsfield, Mass., plan (Gen- 
eral Electric Co.). 
Ill — General Principles : An analysis of the underlying 
principles of collective bargaining through shop com- 
mittees. 
IV — The Basis of Representation: Discussion in detail 
and with practical illustrations of the districting or 
dividing of a plant into shops, districts, and other units 
of self-government. Shows common errors into which 
employers and employees fall. 
V — The Lynn Plan: Shop Committee Scheme of the 

Lynn, Mass., Plant. (General Electric Co.). 
VI — Three Characteristic Plans : Describes plan installed 
in Pittsfield Machine and Tool Co., Pittsfield, Mass. 
Also plan at Bridgeport, Conn., and Philadelphia 
(Rapid Transit Co.). 
VII — Election Machinery: Similar to Chapter IV, a prac- 
tical, detailed discussion of how to hold elections. 
VIII— Procedure : Similar to IV and VII. 
IX — Shop Committees in Action : Stories and actual inci- 
dents related. 
X — The Shop Committee and the Union: Important dis- 
cussion of this question with particular reference to 
whether the formation of shop committees promotes 
unions or not. 

THE MACMILLAN COMPANY 

Publishers 64-66 Fifth Avenue New York 



History of Labor in the United States 

By JOHN R. COMMONS 

Professor of Political Economy, University of Wisconsin, 

President American Economic Association. 

With collaborators 

In two Vols. 8°, $6.50 
" The fullest and most careful history of labor in the 
United States that has yet appeared." — The New York Eve- 
ning Post. 

" It will doubtless be generally accepted as the standard 
history of American labor." — The New York Tribune. 

"A monumental study . . . this probably is the final history 
of labor in our country during the centuries which imme- 
diately precede our own times." — The New York Times. 

Labor and Administration 

By JOHN R. COMMONS 

Cloth, i2tno, $1.60 
" Straightforward and fearless examinations of fact." — 
Boston Evening Transcript. 

" There is not a chapter which does not contain information 
which is practical and timely."— San Francisco Chronicle. 

" Each chapter is a book in itself worthy of careful perusal. 
. . . Written in his unusual vivid and interesting style." — 
Post Dispatch, St. Louis. 

An Introduction to the Study 
of Organized Labor in America 

By GEORGE GORHAM GROAT 
Professor of Economics in the University of Vermont 

$1.90 

"Those interested in the study of the labor movement in 

this country will find Professor Groat's book exceedingly 

helpful — a singularly fair presentation of labor's problem." 

— San Francisco Bulletin. 

" His volume is admirably adapted to giving the student a 
conception of the swiftly changing currents in the field of 
organized labor." — New York Evening Post. 



THE MACMILLAN COMPANY 

Publishers 64-66 Fifth Avenue New York 



The Labor Market 

By DON D. LESCOHIER 

Cloth, 12° 

The employment problem analyzed as a market problem, 
including a careful study of the factors which influence sup- 
ply and demand of labor in normal times and the effect of 
war upon the labor market. 

Workmen's Compensation 

By J. E. RHODES, 2nd 

Cloth, 8vo, $1.50 

A history of the Workmen's Compensation movement in 
this country, and an outline of the principles on which the 
system is based. 

War Time Control of Industry 

By HOWARD L. GRAY 

Cloth, 12*, $1.75 

A review of England's problem of government control 
during the war is particularly significant in the light of the 
present condition in our own country. 



THE MACMILLAN COMPANY 

Publishers 64-66 Fifth Avenue New York 






wm 



H 



HP 



II 






in 



m 1 



I 

n 

IIIIIIHII 



■ 



^M 






iii 



mm 












1 



11 












i 



n 






r 



i 

Sill 



iir 






nffl 



I | 



■■■■■I 



ih 






ill';! 






, ■; i ■ 






■ 



■ 












PHH 



UIHilllliliilH 



